01976299
01-22-1999
Harold L. Gordon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harold L. Gordon v. United States Postal Service
01976299
January 22, 1999
Harold L. Gordon, )
Appellant, )
)
v. ) Appeal No. 01976299
) Agency No. 4D-270-1191-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission hereby sets aside the agency's July 17, 1997 final decision
(FAD) for lack of an adequate record and imprecise framing of the issues
in appellant's March 28, 1997 formal EEO complaint. Henry v. U.S. Postal
Service, EEOC Request No. 05940897 (May 18, 1995); Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). The agency has
raised no new contentions in response to appellant's August 18, 1997
appeal<1> to compel a contrary result.
The FAD dismissed appellant's allegations of sexual harassment from
1988 to June 1996, for untimely EEO Counselor contact, pursuant to 29
C.F.R. 1614.107(b), in pertinent part. The FAD found that appellant's
August 30, 1996 EEO contact was beyond the applicable time limitation
of 45 days, as set forth at 29 C.F.R. �1614.105(a)(1). The FAD cited,
in this regard, an affidavit from appellant's Postmaster (PM), whom
appellant had alleged sexually harassed him or otherwise created
a hostile work environment, asserting there was an EEO poster in
appellant's workplace providing the necessary information including
the applicable time limitation of 45 days to initiate EEO counseling.
No copy of the poster, however, was provided by the agency in the file
transmitted to the Commission in this matter to support a finding that
appellant was on constructive notice of his EEO rights and the applicable
time limitations. Kovarik v. Department of Defense (Army and Air Force
Exchange Service), EEOC Request No. 05930898 (December 9, 1993).
We also find the agency has failed to conduct a continuing violation
analysis in satisfying its burden of providing sufficient evidence to
support a determination on timeliness. Guy, Jr. v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994).
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. McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990). In determining whether a
continuing violation exists, the Commission has relied on the decision
in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983),
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?
In addition, an agency should consider whether a complainant had
prior knowledge or suspicion of discrimination and the effect of this
knowledge. Sabree v. United Brotherhood of Carpenters & Joiners Local
No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree,
supra, as holding that a 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 s/he is being discriminated against until
s/he experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7, 1993).
In the present case, we also find that, although it appears appellant
did not initiate EEO counseling until August 30, 1996, he raised his
claims of sexual harassment verbally with a named agency official (whom
appellant has identified as the "Postmasters Supervisor" (PMSR)), on July
7, 1997, and in writing in a letter dated July 9, 1996. This letter
formed the basis for appellant's formal EEO complainant. However, we
find appellant's complaint devoid of dates of occurrence, the effect
of which is to preclude a continuing violation analysis. In short, we
find appellant has not identified in his complaint an allegation arising
within 45 days of either appellant's July 1996 correspondence with PMSR,
or appellant's August 30, 1996 EEO Counselor contact. In this regard,
we also find appellant's complaint contains numerous allegations,
including some which are vague.
We find, for example, that, as part of the relief sought in his complaint,
appellant, who was issued a September 16, 1996 removal letter, effective
September 27, 1996, asked for reinstatement. The FAD dismissed this
allegation pursuant to 29 C.F.R. �1614.107(d) because appellant, who was
veteran's preference eligible, appealed his removal to the Merit Systems
Protection Board (MSPB, or the Board). In her report, appellant's EEO
Counselor stated that appellant had "filed a complaint with the [MSPB]
regarding the removal action...and this issue was not addressed during
counseling."
In his EEOC appeal, appellant argues, in relevant part, that he withdrew
his MSPB appeal on January 14, 1997, "because I wanted the removal charges
heard by a Federal Mediator under the Grievance and Arbitration Procedures
between the [agency] and the [union]." We find, in this regard, that
appellant filed an MSPB appeal, dated October 25, 1996, challenging his
removal. Appellant's appeal was subsequently dismissed, with prejudice,
by the MSPB, based on appellant's withdrawal of his appeal.
The FAD is hereby VACATED, and appellant's complaint is hereby REMANDED
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of appellant's complaint. The agency shall
comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which shall
include the following actions, with which appellant shall cooperate:
1. The agency shall refer appellant to EEO counseling for the purpose
of clarifying the issues in his March 28, 1997 EEO complaint. Appellant
shall not be permitted to raise new allegations, but shall be permitted
to clarify the allegations raised in his complaint, including, but not
limited to, whether he is attempting to litigate his removal in his
current EEO complaint. Appellant shall not be required to refile his
March 28, 1997 complaint, but he shall precisely state the alleged bases
of discrimination (such as gender). Further, appellant shall provide
the EEO Counselor with a recitation of the specific underlying facts
pertaining to each and every allegation with regard to date of occurrence
and substance of the allegation. Appellant shall also distinguish for
the Counselor those events appellant considers to be "live" allegations
from those appellant has presented by way of background evidence in
support of live allegations.
2. Appellant shall provide to the EEO Counselor, in a statement submitted
under oath or affirmation, an explanation as to why, if such is the case,
he did not bring his allegations to the attention of an EEO Counselor
within 45 days of the alleged discrimination, including the last alleged
incident prior to appellant's August 30, 1996 EEO Counselor contact,
which incident appellant shall identify by date and substance.
3. The EEO Counselor shall obtain, and the agency shall so provide,
a true copy of the EEO poster cited in the affidavit of the Postmaster
referenced in the FAD. The EEO Counselor shall also ascertain, through
statements under oath or affirmation from the Postmaster at issue, and/or
other individuals with first-hand knowledge, information pertaining to
the placement of the poster relative to appellant's work area, as well
as the dates of posting.
4. Subsequently, the agency shall issue a report of supplemental
investigation, which shall include a copy of the EEO Counselor's
supplemental report, with all pertinent documentation. Thereafter, the
agency shall issue a final decision to appellant and his representative,
if any, with appeal rights to the Commission, accepting or dismissing his
EEO complaint in whole or in part. If the FAD dismisses any allegations,
it shall state the legal bases for dismissal, the underlying facts,
and the evidence relied upon.
5. The supplemental investigation, including appellant's meeting with
the EEO Counselor, the EEO Counselor's supplemental report, and issuance
of the final decision, must be completed within ninety (90) calendar
days of the date the Commission's decision becomes final. A copy of
the agency's final decision must be submitted 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. �l6l4.604(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:
January 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant, on appeal, indicated he received the FAD on July 19, 1997. In
the absence of evidence to the contrary, we accept his appeal as timely.
29 C.F.R. �1614.402(a).