01996782
03-29-2001
Colleen Tessman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Colleen Tessman v. United States Postal Service
01996782
03-29-01
.
Colleen Tessman,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996782
Agency No. 4F-956-0097-99
DECISION
Colleen Tessman (complainant) filed an appeal with this Equal Employment
Opportunity Commission (Commission) from a final agency decision (FAD)
dated July 30, 1999, concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. The appeal was postmarked
August 30, 1999. Accordingly, the appeal is timely pursuant to 29
C.F.R. � 1614.402(a), and is accepted in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
claims 1-8 of complainant's complaint for untimely EEO counselor contact
and claim 9 as being moot.
BACKGROUND
On April 29, 1999, complainant initiated EEO Counselor contact. On May
25, 1999, she submitted a request for counseling alleging that she was
discriminated against and subjected to a hostile working environment
because of her race (White), sex (female), disability (stress disorder),
and retaliation (prior EEO activity)<1> when:
On July 2, 1997, she suffered a work-related anxiety attack as a result
of inadequate staffing; was not offered any medical assistance and
subsequently harassed by the manager in the processing of her related
injury compensation claim;
On September 20, 1997, she received a Letter of Demand for reimbursement
of a drawer audit shortage as a result of the July 2, 1997 incident,
when she left keys in her drawer;
On November 13, 1997, she experienced an anxiety attack after her
grievance relative to the Letter of Demand was denied;
In December 1997, she was denied pre-approved annual leave during the
Christmas holidays;
On April 8, 1998, and on August 6, 1998, she was scheduled to unload
trucks contrary to her medical restrictions resulting in an on-the-job
injury and additional loss of time;
On April 17, 1998, management required her to request limited duty for
her Thoracic Outlet Syndrome (TOS), and her request was denied;
On April 30, 1998, she was humiliated and embarrassed in front of her
co-workers upon return to work after an emergency call to pick up her
son from school;
On October 26, 1998, she sustained an on the job injury, but because she
feared her manager, she requested medical assistance from a supervisor
at another postal facility; and
On April 27, 1999, she was threatened by her manager when he backed her
into a corner and forced her to complete a Request for Notification of
Absence (P.S. Form 3971) for tardiness on April 22, 1999.
In her request for relief, complainant sought the removal of her
supervisor from the Roseville Post Office and compensatory and punitive
damages. Complainant sought the same relief on July 6, 1999 when she
timely filed her formal EEO complaint.
In a FAD dated July 30, 1999, the agency dismissed complainant's
complaint in its entirety. With regard to claims 1-8, the agency
stated that complainant sought counseling more that 45 days after
the alleged incidents occurred. The agency dismissed claim 9 as moot
because complainant had reached a Step-2 grievance settlement agreement
which provided that management would not require employees to submit
a Form 3971 if they clock in and/or out within the five minute leeway.
The agency argued that it could be said with assurance that there was no
reasonable expectation that the alleged violation would recur, and that
the interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation.
FINDINGS AND ANALYSIS
In its FAD, the agency dismissed claim 9 as moot, because it had been
resolved in a Step-2 grievance settlement. The regulation set forth at
29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint
when the issues raised therein are moot. To determine whether the
issues raised in complainant's complaint are moot, the fact finder must
ascertain whether (1) it can be said with assurance that there is no
reasonable expectation that the alleged violation will recur; and (2)
interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented. Additionally, in determining if a claim is
moot, the complaint must be viewed as a whole, providing some relief
for one incident of harassment does not render the complaint moot. We
further note that complainant requests as part of her remedial relief
that she be awarded compensatory damages. Should complainant prevail
in her complaint, the possibility of an award of compensatory damages
exists, and her issues are not therefore moot. See Glover v. USPS,
EEOC Appeal No. 01930696 (December 9, 1993). Based on this analysis,
the agency's decision to dismiss claim 9 was improper.
EEOC Regulations 29 C.F.R. � 1614.107(a)(2) provides that the agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in 29 C.F.R. �� 1614.105, 1614.106 and 1614.204(c),
unless the agency extends the time limits in accordance with 29 C.F.R. �
1614.604(c). The agency dismissed claims 1-8 of complainant's complaint
as untimely, and relied on EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
which requires that complaints of discrimination be brought to the
attention of the EEO Counselor within forty-five (45) days of the date of
the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action. However,
the Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain issues within a complaint when
the complainant alleges a continuing violation; that is, a series of
related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. See McGivern v. USPS, EEOC Request
No. 05901150 (December 28, 1990); Starr v. USPS, EEOC Appeal No. 01890412
(April 6, 1989).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary
to determine whether the acts are interrelated by a common nexus or
theme. See Vissing v. Nuclear Regulatory Commission, EEOC Request
No. 05890308 (June 13, 1989); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). Should such a
nexus exist, complainant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness
of the complaint with respect to some of the acts" challenged by
complainant. Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Complainant alleges that she was continually subjected a pattern of abuse
by her supervisor, which created a hostile working environment. In claim
9, complainant timely initiated EEO counseling and alleged that on April
27, 1999, she was threatened by her manager when he backed her into a
corner and forced her to complete a Form 3971 for tardiness on April
22, 1999. In claim 4, complainant was denied pre-approved leave during
the Christmas holidays. Specifically, her supervisor asked her to fill
out a Form 3971 cancelling her leave for the week of Christmas, as she
had not yet received a response from the Department of Labor regarding
her claim for work related stress and anxiety. Complainant stated
that she had to file a grievance in order to get the leave. Further,
complainant alleges that her supervisor had a tendency to not forward
her Form 3971's in a timely manner, which in one instance resulted in
her being charged, and asked to repay, sick leave instead of the Leave
Without Pay she requested.<2> Additionally, complainant's supervisor
regularly delayed the processing of her requests for compensation
in relation to injuries on the job and her Thoracic Outlet Syndrome.
A review of the record shows that the alleged harassment consisted of
an interrelation of past and present actions and conduct on the part
of complainant's supervisor which negatively impacted complainant's
ability to take leave and to be compensated and properly accommodated
for her disability and her job related injuries. These actions occurred
approximately over a two year time span and did not cease in spite of
complainant's grievances. For these reasons, we find that complainant
has established a continuing violation. Therefore, the agency's decision
dismissing claims 1-8 was improper.
CONCLUSION
The agency decision dismissing complainant's claims was improper and is
REVERSED. This claim is REMANDED to the agency for further processing
in accordance with the ORDER below.
ORDER (E0900)
The agency is ORDERED to process the remanded claim(s) of harassment in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__03-29-01________________
Date
1Complainant did not provide the statutory basis for her previous EEO
complaint.
2Complainant cited this and several other examples of discrimination
in her May 25, 1999 request for counseling, however the agency only
addressed claims 1-9 in its FAD. A review of the record shows that
those claims were also untimely, but are being discussed here as they
further establish that complainant states a continuing violation.