Colleen Tessman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2001
01996782 (E.E.O.C. Mar. 29, 2001)

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.