01980227
11-27-1998
Freddy Pesante v. United States Postal Service
01980227
November 27, 1998
Freddy Pesante, )
Appellant, )
)
)
v. ) Appeal No. 01980227
) Agency No. 4A009006497
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint in its entirety, pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Appellant alleged that he was subjected to unlawful employment
discrimination on the basis of reprisal when he was systematically
discriminated against from January 1995 through June 1997. Specifically,
appellant alleged that:
1. On March 5, 1997, a coworker attempted on several occasions
throughout the day to direct appellant's work even though she had no
authority to do so;
2. On June 7, 1997, appellant had a confrontation with a Postmaster
regarding whether appellant was following proper procedures with regard
to securing his postal vehicle and seatbelt usage;<1> and
3. Since appellant filed a previous complaint, the Postmaster and the
coworker, who are married to each other, have been threatening him.<2>
The record indicates that on June 9, 1997, appellant initiated contact
with an EEO Counselor regarding his complaint. On September 26, 1997,
the agency issued a final decision dismissing appellant's complaint for
failure to state a claim. Specifically, the agency found that appellant
failed to establish a continuing violation, and did not provide sufficient
justification to warrant the waiving of the applicable 45-day time limit
to contact an EEO Counselor. The agency also found that appellant failed
to articulate how specific incidents caused him to suffer any loss or
harm with respect to a term, condition, or privilege of employment.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of personnel action, within 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 45-day
limitation period is triggered. Turner v. Department of the Navy, EEOC
Request No. 01973691 (January 29, 1998). Thus, the limitation period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Appellant argued that the time limit should be extended for the untimely
allegations because he was subjected to a continuing violation. The
Commission has determined that the normal time limit for contacting an
EEO Counselor may be suspended if a continuing violation is demonstrated.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). A continuing violation has been defined as a series of
related acts, one or more of which falls within the limitations period.
Valentino v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark
v. Olincraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied, 434
U.S. 1069 (1978).
Whether a series of discrete acts constitutes a continuing violation
claim depends on the interrelatedness of the past and present acts.
Relevant to this determination are whether the discrete acts were similar
in nature; whether the acts were recurring (e.g., a regular paycheck)
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;
whether the same agency officials were involved; and so forth. Woljan
v. Environmental Protection Agency, EEOC Request No. 05950361 (October
5, 1995). Also relevant to the inquiry is whether the complainant had
prior knowledge or suspicion of the discrimination. Rohrer v. Department
of Health and Human Services, EEOC Request No. 05940965 (April 12, 1995);
Crowbridge v. United States Postal Service, EEOC Request No. 05921030
(October 14, 1994).
In the present case, the agency found that none of the alleged incidents
occurred within the 45-day time limit allotted to initiate contact with
an EEO Counselor. The Commission agrees, in part, with this finding.
According to the Counselor's Report, the most recent alleged
discriminatory incident, harassment by a Postmaster, occurred on June 7,
1997; the date of initial contact with an EEO Counselor was June 9, 1997.
Therefore, the contact was timely made pursuant to 29 C.F.R. �1614.105(a).
However, no continuing violation exists because there is no nexus between
Issues 1 and 2; that is, Issues 1 and 2 concern distinct events involving
different personnel. Issue 1 therefore is dismissed as untimely.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment allegations are sufficient to state
a hostile or abusive work environment claim, see Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission
has repeatedly found that allegations of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment claim.
For example, the Commission held that allegations that a supervisor had
"verbally attacked" the complainant on one occasion, attempted to charge
him with AWOL, and disagreed with the time the complainant entered
into a sign-in log, were insufficient to state a harassment claim.
Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996). Similarly, the Commission has held that allegations
that on one occasion a supervisor threw a file on the complainant's desk
and berated her in a loud voice in the presence of other employees,
causing her embarrassment and humiliation, were insufficient to state
a harassment claim. Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995). It is the opinion of the Commission
that allegation 2 of this decision is analogous to Phillips and Banks,
and fails to state a claim. Issue 2 therefore is dismissed.
Issue 3 was raised with the EEO Counselor but was not discussed in the
report of counseling. It was also raised in the complaint, but was not
addressed by the agency. Therefore, Issue 3 is remanded in accordance
with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. Issue 3 is remanded for additional counseling
to clarify the allegation, including specific dates and incidents,
followed by acceptance and investigation or a new FAD rejecting the
allegation. Appellant need not refile the complaint. The agency shall
acknowledge to the appellant that it has received the remanded allegation
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:
Nov 27, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1This allegation resulted in a Letter of Warning which was withdrawn
pursuant to a grievance, and the letter is not at issue in the complaint.
2No specific incidents are cited, nor are any dates given.