01990956
09-14-1999
Daniel J. Griego, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel J. Griego v. United States Postal Service
01990956
September 14, 1999
Daniel J. Griego, )
Appellant, )
) Appeal No. 01990956
v. ) Agency No. 4-E-800-0266-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his 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. The appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor and for failure to
state a claim.
BACKGROUND
Appellant first sought EEO counseling on June 15, 1998 in reference to the
agency's failure to provide religious accommodation. Appellant requested
leave in order to attend a district convention of Jehovah's Witnesses
on July 24-26, 1998. He made his request on three separate occasions
on January 13, 1998, April 3, 1998, and June 10, 1998. Appellant filed
a formal complaint on July 22, 1998, alleging discrimination on the
basis of religion (Jehovah's Witness) when he was denied his request
for religious accommodation.
In its FAD, the agency rejected for investigation the denial of
appellant's requests for leave on January 13, 1998 and April 3, 1998,
because the agency found that appellant failed to contact an EEO Counselor
within the 45-day time limit. As to the request for leave on June 10,
1998, the agency found that appellant was granted leave for the week
of July 20, 1998, which allowed appellant to attend the convention.
The agency found that appellant was no longer aggrieved. Therefore, it
dismissed the allegation of discrimination in the denial of leave which
was requested on June 10, 1998, for failure to state a claim pursuant
to 29 C.F.R. �1614.107(a). This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence, appellant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988) (interpreting 29 C.F.R. �1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. �1614.105(a)(1)).
Upon review of the record, the Commission finds that the alleged
discriminatory acts occurred on January 13, 1998, April 3, 1998, and
June 10, 1998, when appellant was denied his religious accommodation in
the form of leave to attend a religious conference. Appellant contacted
an EEO Counselor on June 15, 1998, which was after the expiration of the
applicable time limitation period with respect to the denials of leave
on January 13, 1998, and April 3, 1998.
The Commission has held that the time requirements for initiating EEO
Counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series of
related discriminatory acts, one of which fell within the time period for
contacting an EEO Counselor. McGivern v. United States Postal Service,
EEOC Request No. 05901150 (December 28, 1990).
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, appellant 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 appellant.
Scott v. Claytor, 469 F.Supp. 22, 26 (D.D.C. 1978).
Upon review, we find that appellant requested religious accommodation on
three occasions. Each request was in reference to the same dates for the
same purpose of attending a religious convention on July 24-26, 1998.
All three requests were denied for the same reasons (no opening in the
schedule and appellant is not an Elder) and by the same supervisor.
Furthermore, it is important, in determining whether a claim for
continuing violation is stated, to consider whether an appellant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern).
In the present case, appellant establishes a continuing violation.
Appellant noted in his appeal that he made three requests because
he wanted to give management the opportunity to rework the employee
schedule so that they may grant him the religious accommodation that
he requested. After the third denial on June 10, 1998, appellant
perceived his situation to be the result of discriminatory acts.
Appellant alleges that on June 10, 1998, he asked the postmaster to
grant appellant his religious accommodation request for leave in order
to attend the religious conference on July 24-26, 1998. The postmaster
denied the accommodation request and told appellant that if he were to
grant this religious accommodation for appellant, then he would have a
bigger problem in the future. In particular, the postmaster was concerned
that everyone in the office would request a religious accommodation for
leave around the Christmas holiday. Thus, we find that appellant knew
or suspected discrimination on or about June 10, 1998, concerning the
denials of religious accommodation by the agency.
We find that appellant presents adequate justification for an extension
of the applicable time limit by establishing a continuing violation.
Thus, we find that appellant did contact an EEO Counsel in a timely
manner with regards to the denial of religious accommodation on January
13, 1998, and April 3, 1998.
Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age, or disabling condition.
29 C.F.R. �1614.103; �1614.106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the present case, appellant alleges he was discriminated against when
his requests for religious accommodation were denied on January 13, 1998,
April 3, 1998, and June 10, 1998. Appellant alleged harm with respect to
a term, condition, or privilege of his employment, i.e., he was denied
his request for religious accommodation on three occasions. The record
indicates that appellant was granted a subsequent accommodation request
dated July 6, 1998. The granting of the religious accommodation on July
6, 1998, does not make his allegations of discrimination on January 13,
1998, April 3, 1998, and June 10, 1998, fail to state a claim. Therefore,
the Commission finds that the appellant is aggrieved and his allegation
does state a claim.
CONCLUSION
For the foregoing reasons, we REVERSE the final agency decision and
REMAND this case for further procession consistent with this decision
and order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations