01990131
10-14-1999
Etrulia D. Harper, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Etrulia D. Harper, )
Appellant, )
)
v. )
) Appeal No. 01990131
William J. Henderson, ) Agency No. 1-H-304-0008-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated September 10, 1998, dismissing
her complaint for untimely EEO Counselor contact. Accordingly, the
Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
On October 14, 1997, appellant contacted an EEO Counselor alleging
that she was the victim of unlawful employment discrimination based
on sex (sexual harassment) when between December 1996 and July 24,
1997, she was subjected to a hostile work environment, after ending
a personal relationship with the Manager of Distribution Operations.
Informal efforts to resolve appellant's concerns were unsuccessful.
On July 2, 1998, appellant filed a formal complaint.
In its FAD, the agency dismissed appellant's complaint for untimely EEO
Counselor contact, pursuant to 29 C.F.R. �1614.107(b). Specifically,
the agency determined that appellant's initial EEO Counselor contact
was nearly three months past the most recent alleged incident of
discrimination, and was therefore well beyond the forty-five day time
limitation. The agency also conducted a continuing violation analysis,
and determined that because none of the alleged incidents were timely
raised before an EEO Counselor, the continuing violation theory could
not be utilized.
The Commission's regulations require that complaints of discrimination be
brought to the attention of an EEO Counselor within forty-five 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.
29 C.F.R. �1614.105(a)(1). The Commission has adopted a �reasonable
suspicion� standard, as opposed to a �supportive facts� standard, to
determine when the 45 day limitations period is triggered. See Ball
v. U.S. Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitation period is not triggered until a complainant reasonably
suspects discrimination, but before all of the facts that support a
charge of discrimination have become apparent.
One circumstance under which the time limitation may be waived is if the
otherwise untimely allegation is part of a �continuing violation,� i.e.,
a related series of discriminatory acts, at least one of which occurred
during the 45 days prior to the initial counselor contact. In order
to present a continuing violation, appellant must show �a series of
related acts, one or more of which falls within the limitations period.�
See United Airlines v. Evans, 431 U.S. 553, 558 (1977); Valentino
v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982). Appellant must
also establish that the various acts complained of are sufficiently
interrelated by a common nexus so as to constitute a continuing violation.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
In the instant case, the Commission finds that the agency properly
dismissed the complaint for untimely counselor contact. Appellant's
October 14, 1997 EEO Counselor contact was well beyond the forty-five day
time limitation. Although appellant has alleged on-going harassment,
the continuing violation theory is not applicable here, as none of the
alleged acts occurred within forty-five days of appellant's initial
EEO Counselor contact. Further, the Commission finds that appellant
has not provided sufficient information upon which a waiver of the
time limitation might be granted. Accordingly, the agency's decision
dismissing appellant's complaint is 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:
October 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations