01985349_r
10-06-1999
Daniel Milanese, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel Milanese, )
Appellant, )
)
v. ) Appeal No. 01985349
) Agency No. 4A-105-0064-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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., and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was issued on June 2, 1998. The appeal was postmarked June 25, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
1. The first issue presented is whether the agency properly dismissed
allegations 1-3 of appellant's complaint on the grounds of failure to
contact an EEO Counselor in a timely manner.
2. The second issue presented is whether the agency properly dismissed
allegations 3, 4, 6, and 7 of appellant's complaint on the grounds of
failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on January 26, 1998.
On March 17, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been subjected to discrimination on the bases of
his sex (male) and physical disability (rotator cuff injury) when:
1. He was issued a letter of warning in the summer of 1997.
2. He was issued a letter of removal effective November 15, 1997.
3. Sexual comments were made against him prior to the removal of November
15, 1997.
4. He was issued a notice of removal on January 29, 1998.
5. On February 11, 1998, as a result of an on-the-job injury, the notice
of removal dated November 30, 1997 was reactivated.
6. On unspecified dates, he was forced to work in a discriminatory
hostile work environment.
7. On unspecified dates, he was placed under mental duress and depression
for discriminatory actions.
The record reveals that by letter dated April 27, 1998, the agency
requested that appellant clarify allegations 2-8.<1> With regard
to appellant's claim of a discriminatory hostile work environment
and that he was placed under mental duress and depression, the agency
requested that appellant specifically describe the hostile conditions,
dates, times, and responsible officials. The agency also asked whether
adverse action was taken as a result of these actions. With respect to
the alleged discrimination against appellant for an on-the-job injury,
appellant was asked what specific action was taken against him as a
result of the injury and the date the action was taken.
By letter dated May 19, 1998, appellant responded as to allegation 3
that the Postmaster specifically announced in an open forum after talking
with him on the telephone, �It must be her time of the month�, as to why
he could not come to work. Appellant stated that on a number of other
occasions the Postmaster made references about his sexuality. With regard
to his claim of a hostile work environment, appellant stated that the
hostile conditions included comments made concerning sexual orientation.
Appellant stated that the new Postmaster harassed him with threats, issued
him a dismissal letter and then rescinded it, and then threatened that
he would receive another dismissal letter. As for the discrimination
against him because he had an on-the-job injury, appellant stated that
during the time that he was out of work from December 3, 1997 to December
26, 1997, due to a torn rotator cuff, the Postmaster made comments to
others that he felt appellant was faking it. According to appellant,
insufficient staffing at his work facility caused him to work enormous
hours from January 12, 1998 to February 9, 1998. Appellant stated that
as a result, his rotator cuff became inflamed and painful, and he had
to seek medical attention on February 9, 1998. Appellant noted that he
was placed off duty and was given a letter of removal on February 11,
1998, because he was out of work due to the injury.
In its final decision, the agency dismissed allegations 1-3 of appellant's
complaint on the grounds of failure to contact an EEO Counselor in
a timely manner. The agency determined that appellant's initial EEO
contact on January 26, 1998, was after the expiration of the 45-day
limitation period for contacting an EEO Counselor. The agency further
determined that appellant failed to set forth a continuing violation.
The agency noted that on October 7, 1997, and November 13, 1997,
settlement agreements were reached with appellant's union regarding
the letter of warning issued on August 29, 1997, and the notice of
removal issued on October 27, 1997; consequently, the agency noted
that appellant disputed these actions when they occurred and should
have initiated EEO contact at that time. Allegations 3, 4, 6, and 7
were dismissed on the grounds of failure to state a claim. With regard
to allegation 4, the agency determined that appellant was notified by
letter dated February 4, 1998, that the notice of removal dated January
29, 1998, was withdrawn. The agency determined that appellant failed
to establish that he suffered personal harm with respect to a term,
condition, or privilege of his employment. As for allegations 3 and 6,
the agency stated that in response to its letter dated April 27, 1998,
appellant did not provide specific dates associated with any incidents.
The agency noted that appellant stated the Postmaster made a comment
in the office, �It must be her time of the month,� for all to hear.
With respect to allegation 7, the agency stated that although it sought
clarification of the allegation, appellant failed to articulate in
his letter dated May 19, 1998, how he suffered loss or harm to a term,
condition, or privilege of his employment. Allegation 5 was accepted
for investigation.
On appeal, appellant contends that he was unaware of the EEO process
and what was considered discrimination until the day that he contacted
an EEO Counselor. Appellant claims that he never saw the EEO poster.
Appellant argues that the removals dated January 29, 1998, and February
11, 1998, reactivated the letter of removal issued on November 15, 1997.
According to appellant, he only recently developed the belief that he was
subjected to discipline due to the Postmaster's hatred of gay men. With
regard to the agency's dismissal of allegation 6, appellant argues that
remarks about his sexual orientation created a hostile work environment.
Appellant claims that this allegation also involves actions where the
Postmaster told coworkers about his complaint and the Postmaster solicited
opinions about whether to remove him. Appellant argues that he would
have provided more detail about this allegation had he been afforded
an opportunity for a pre-complaint interview. Appellant claims that he
suffered a flare up of his rotator cuff injury because he was forced to
work in an understaffed office. Appellant states that he experienced
mental anguish due to the threatened removals and the comments made
about his sexual orientation.
In response, the agency asserts that in his initial argument, appellant
did not specifically state that he failed to see the EEO posters, but
rather that he did not understand the EEO process. The agency submits an
affidavit from the Acting Supervisor of Customer Service at appellant's
work facility. The Acting Supervisor asserts that posters have been on
display for the past three or more years. A copy of a poster submitted
by the agency references the 45-day limitation period for contacting
an EEO Counselor. The agency argues that appellant should have had a
reasonable suspicion of discrimination by November 13, 1997, the date
of the grievance settlement that resulted in the notice of removal
being held in abeyance for 90 days. With regard to its request that
appellant clarify his allegations, the agency states that appellant's
response was brief and basically reiterated information previously
provided. According to the agency, the only sexually provocative
remark identified by appellant was the statement, �It must be her time
of the month.� Otherwise, the agency states that appellant generally
stated that comments were made by others concerning sexual orientation.
With respect to allegation 4, the agency asserts that appellant was no
longer aggrieved once the notice of removal was withdrawn. The agency
maintains that appellant has not offered evidence of a hostile work
environment, or that adverse actions have been taken against him as a
result of his on-the-job injury. Finally, the agency states that the
notices of removal referenced in allegations 2 and 4 are in reality the
removal that was issued on November 30, 1997, and reactivated in February
1998, and accepted for investigation as allegation 5.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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. See McGovern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. Postal
Service, 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, 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).
In determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
It is important, in determining whether a claim for a 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).
We find with regard to the incidents raised in allegations 1-2 that
appellant's contact of an EEO Counselor on January 26, 1988, was untimely.
The relevant actions occurred during the period of the summer of 1997
- November 15, 1997, more than 45 days before appellant contacted an
EEO Counselor. The agency established that an EEO poster containing
the relevant time frames was posted at appellant's work facility
and that appellant therefore had constructive notice of the 45-day
limitation period for contacting an EEO Counselor. We further find
that appellant did not set forth a continuing violation with regard to
allegations 1-2. We find that the letter of warning and the letter of
removal were sufficiently discrete and had a degree of permanence which
should have triggered appellant's suspicion of discrimination more than
45 days before he contacted an EEO Counselor. Accordingly, the agency's
dismissal of allegations 1-2 on the grounds of untimely EEO contact was
proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
It has long been established that �identical� does not mean �similar.�
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The record indicates with regard to allegation 4 that the notice of
removal issued on January 29, 1998, was a re-issuance of the notice of
removal issued on October 27, 1997. The January 29, 1998, notice of
removal was procedurally defective and was withdrawn by letter dated
February 4, 1998. It was subsequently reissued on February 11, 1998.
In light of the fact that the accepted allegation (allegation 5)
involves the notice of removal reissued on February 11, 1998, we find
that allegation 4 in effect states the same claim as a matter pending
before the agency. Accordingly, the agency's dismissal of allegation
4 was proper for the reasons set forth herein and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age) and the Rehabilitation Act (discrimination on
the basis of disability) shall be processed in accordance with Part 29
C.F.R. �1614 of the EEOC Regulations.
The only proper inquiry, therefore, in determining whether an allegation
is within the purview of the EEO process is whether the complainant is an
aggrieved employee and whether s/he has alleged employment discrimination
covered by the EEO statutes. 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. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
With regard to allegations 3, 6, and 7, we find upon review of appellant's
letter dated May 19, 1998, and the record as a whole, that appellant
is claiming that he was subjected to sexual comments being made against
him, a hostile work environment, and mental duress and depression based
on his sexual orientation. The Commission advises appellant that a
claim of discrimination based on sexual orientation is not cognizable
under any of the statutes enforced by the Commission. In Morrison
v. Department of the Navy, EEOC Request No. 05930964 (June 16, 1994),
the Commission found that Title VII's prohibition of sexual harassment
does not apply to cases which raise issues regarding an individual's
perceived sexual preference or orientation. Accordingly, the agency's
dismissal of allegations 3, 6, and 7 on the grounds of failure to state
a claim was proper and is AFFIRMED.<2>
Finally, appellant claimed that he was discriminated against due to
his injury. To the extent appellant claims that the discrimination was
evidenced by the notice of removal issued on February 11, 1998, we find
that this issue will be addressed through the processing of allegation 5.
To the extent appellant claims the discrimination was reflected in the
Postmaster's comments to others that he believed appellant was faking his
injury, we find that these comments did not adversely affect appellant
with regard to a term, condition, or privilege of his employment.
Appellant did not demonstrate that these comments were sufficiently
severe or pervasive to constitute harassment.
CONCLUSION
The agency's decision to dismiss allegations 1-4, 6, and 7 is AFFIRMED
for the reasons set forth herein.
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 (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
October 6, 1999
DATE Carlton
M. Hadden,
Acting Director
Office of Federal Operations 1 In this letter, allegation 7 was
defined as whether appellant was discriminated against for having an
on-the-job injury and allegation 8 was defined as whether appellant
was discriminated against when he was placed under mental duress
and depression.
2 In light of our dismissal of allegation 3 on the grounds of failure
to state a claim, we need not address the agency's alternative grounds
for dismissal.