01992725
02-04-2000
Francisanna M. Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Francisanna M. Jones, )
Complainant, )
)
)
v. ) Appeal No. 01992725
) Agency No. 1G708006298
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 19, 1999, the complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated January 20, 1999.
The FAD addressed a 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..<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed the
complainant's complaint for untimely EEO counselor contact.
BACKGROUND
The record indicates that on July 1, 1998, complainant initiated contact
with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On August 4, 1998, complainant
filed a formal complaint alleging that she was the victim of unlawful
employment discrimination on the bases of race (Black), sex (female),
disability (Wolf Parkinson White Syndrome), and reprisal (prior EEO
contact) when:
after she was placed on Tour 2<2> duty, her daily work hours were cut
from eight hours to six hours; and
she was forced to return to Tour 3 duty on or about July 1, 1998.<3>
On January 20, 1999, the agency issued a final decision dismissing
complainant's complaint for untimely EEO counselor contact. 29 C.F.R. �
1614.105(a)(1). Specifically, the agency found that the complainant
had waited sixty-two days before initiating EEO contact after the
alleged discriminatory event. In the brief in support of her appeal,
the complainant argues that she did have timely EEO contact under the
continuing violation theory.
ANALYSIS AND FINDINGS
According to the regulations, a complainant must initiate contact with
an EEO counselor within 45 days of an alleged discriminatory event. 29
C.F.R. � 1614.105(a)(1). In this case, the complainant contacted the EEO
counselor July 1, 1998. She initiated contact after her work hours were
continuously cut and she was forced to return to Tour 3 duty. The EEO
counselor's report acknowledges that one of the alleged discriminatory
events occurred on April 30, 1998. The agency argues that the EEO contact
was untimely.
The Commission has held that the time requirement for initiating
EEO counseling could be waived as to certain allegations within a
complaint when the complainant alleged a continuing violation. See Reid
v. Department of Commerce, EEOC Request No. 05970705 (April 22, 1999);
McGivern v. U.S. Postal Service, EEOC Request No. 05901150 (December 28,
1990).
To establish a continuing violation, a complainant must show a series
of related past and present acts. Berry v. Board of Supervisors of
Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied,
479 U.S. 868 (1986). One or more of these acts must fall within
the charge-filing period. United Airlines v. Evans, 431 U.S. 553, 558
(1977); see also Valentino v. USPS, 674 F.2d 56 (D.C. Cir. 1982). The
acts must be ongoing and related to the present violation so that
a connection, or nexus, among the acts is established. 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,
complainant 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.� Scott v. Claytor, 469 F. Supp. 22, 26
(D.D.C. 1978).
In this analysis, the Commission must determine whether the acts were
recurring or were isolated employment decisions, whether the same
agency officials were involved, and 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. Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
In this case, the complainant alleges that she faced discrimination
from April 30, 1998 until July 1, 1998. On a recurring basis, the
complainant's daily hours were cut from eight to six hours while other
employees received eight hours a day. The Commission finds that each
of these daily cutbacks was a separate act. She experienced this
discrimination from the same supervisory official. These acts were
not isolated. Therefore, the Commission believes these actions are
interrelated and a nexus exists.
Although the past and present events are interrelated by a common nexus,
the Commission must also determine whether the complainant 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). If the complainant �is unable to appreciate that [s]he is
being discriminated against until [s]he has lived through a series of
acts and is thereby able to perceive the overall discriminatory pattern,�
then a continuing violation may exist. Sabree v. United Brotherhood of
Carpenters and Joiners, 921 F.2d 396 (1st Cir. 1990).
According to her affidavit, the complainant noticed that other employees
on Tour 2 duty were working eight hours a day. She asked her supervisor
if she could get the additional hours, but she was denied. On June 10,
1998, she wrote a letter to her supervisor again requesting the hours.
When the supervisor did not respond, she wrote a letter to a divisional
manager. The Commission finds that at this point the complainant first
developed a suspicion of the discrimination. This suspicion is evident in
the two letters that she wrote to the supervisor and divisional manager.
She was able to appreciate that she was being discriminated against and
perceive an overall pattern of discrimination. When the discrimination
continued, the complainant initiated EEO counselor contact on July
1, 1998. The complainant made contact within 45 days of her June 10,
1998 suspicion. As such, we hold that the EEO counselor contact was
timely.
CONCLUSION
Accordingly, the agency's decision is REVERSED. Complainant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
02/04/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 In a previous EEO complaint, the complainant alleged discrimination on
the bases of race (black), sex (female), sexual harassment, and disability
(Wolf Parkinson Syndrome) on her Tour 3 duty. She believed that the
agency officials retaliated against her. As a result, on April 12, 1998,
complainant requested a transfer to Tour 2 duty. She was transferred
on April 30, 1998.
3According to the EEO Counselor's Report, the complainant reported that
she was forced to return to Tour 3 duty on June 26, 1998. However,
in her signed affidavit, the complainant stated that she was forced to
go back to Tour 3 duty on July 1, 1998. This transfer occurred after
a meeting between her supervisor and another agency official. In this
meeting, according to the complainant, the supervisor stated that she
did not have the hours to give to the complainant.