Daniel J. Griego, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01990956 (E.E.O.C. Sep. 14, 1999)

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