01974619_r
01-14-1999
Danielle F. Bryan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Danielle F. Bryan, )
Appellant, )
)
)
v. ) Appeal No. 01974619
) Agency No. 4K-210-0051-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On May 19, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated April 29, 1997, pertaining to
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.
In her complaint, appellant alleged that she was subjected to sexual
harassment because of her sex (female) when:
Beginning August 1993, through may 1995, appellant's supervisor (S1)
approached appellant from behind and rubbed her shoulders and back;
In May 1995, S1 rubbed appellant's shoulders and back on a daily basis,
approached her from behind and pressed the length of his body against
her, and on some occasions, put his hands on her waist and moved them
upward until they came in contact with her breasts;
On multiple occasions in May 1995, S1 made sexual comments toward
appellant, asked her to go out with him, and made comparisons between
her and other employees' bodies;
On May 20, 1996, S1 commented to appellant, �My God, you fill out a
sweater better than Lana Turner�;
During the week of May 28, 1996, S1 commented to appellant, �You have
a nice butt. What's your phone number?�; and
On occasion, when appellant requested an additional hour to complete
her route, S1 responded, �What are you going to do for me?� and �What's
in it for me?�.
On April 29, 1997, The agency issued a FAD accepting allegations (4)
through (6) for investigation, and dismissing allegations (1) through
(3) pursuant to EEOC Regulation 29 U.S.C. �1614.107(b), for failure to
initiate contact with an EEO Counselor in a timely manner. Specifically,
the agency determined that appellant's June 21, 1996 initial EEO Counselor
contact occurred more than forty-five days from the dates of the alleged
incidents of harassment and was, therefore, untimely. Additionally,
the agency concluded that appellant failed to establish a continuing
violation because the incidents about which she complained were of
such permanence and finality to trigger a reasonable person to act to
protect her rights. Finally, the agency noted that appellant contacted
an attorney approximately one year prior to her request for counseling,
but allowed the sexual harassment to continue.
On appeal, appellant contends that she established a continuing violation,
and explains that she did not come forward prior to June 1996, because
she feared that S1 would jeopardize her career, and that her coworkers
would ridicule and retaliate against her.
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 forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
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 McGivern 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered
an employee's awareness and duty to assert his or her rights; and,
whether the same agency officials were involved. Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, 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. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
In the instant case, the record shows that appellant experienced repeated
acts of physical touching and vulgar sexual comments, innuendo, and
propositions. We find that such actions had the degree of permanence
which should have triggered appellant's awareness and duty to assert
her rights. Moreover, as indicated by her meeting with an attorney
approximately a year prior to initiating EEO Counselor contact, appellant
clearly had prior knowledge or suspicion of discrimination, yet elected
not to exercise her right to file an EEO complaint. Finally, although
appellant asserted that her delay in contacting an EEO Counselor was due
to her fear of retaliation, the Commission has previously held that fear
of retaliation is an insufficient justification for extending the time
limitation for contacting an EEO Counselor. See Simeone v. Department
of the Navy, EEOC Request No. 05930973 (January 25, 1994).
Based on the foregoing, the agency's decision to dismiss allegations
(1) through (3) is hereby AFFIRMED.
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. 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:
Jan. 14, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations