01994782
10-20-1999
Helen Mosser, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Helen Mosser v. United States Postal Service
01994782
October 20, 1999
Helen Mosser, )
Appellant, )
)
v. ) Appeal No. 01994782
) Agency No. 4-A-105-0011-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The record shows that appellant sought EEO counseling on September 29,
1998, alleging that she had been discriminated against on the bases of
religion, sex, and reprisal. Informal efforts to resolve her concerns
were unsuccessful.
Subsequently appellant filed a formal complaint of discrimination alleging
that she had been discriminated against on the bases of religion, sex, and
reprisal when from April 1998 through January 11, 1998, her supervisor:
(1) accused her of stealing envelopes in April 1998;
(2) on June 5, 1998, accused her of threatening him, and then threatened
her with disciplinary action;
(3) caused her to have an anxiety attack on June 6, 1998, resulting in
her being out of work until August 6, 1998;
(4) issued her a 7-day suspension dated August 6, 1998;
(5) on August 7, 1998, threatened her again, indicating she deserved
the highest punishment;
(6) ignored her request to see an EAP counselor on August 10, 1998;
(7) audited her stamp drawer on August 11, 1998;
(8) audited her drawer on August 20, 1998;
(9) issued her a letter of demand dated August 20, 1998;
(10) audited her stamp drawer on October 22, 1998;
(11) on November 5, 1998, did not remove a letter of warning from her
personnel file; and
(12) on January 11, 1999, ignored her request for help.
The agency issued a final decision dismissing allegations (1) - (7)
on the basis of untimely EEO counselor contact. The agency noted that
appellant's initial EEO counselor contact on September 29, 1998, was
beyond the 45-day time limit. Allegations (8) - (12) were accepted
for investigation.
On appeal appellant contends that she was not able to contact an EEO
counselor before September 29, 1998, because at that time she was able
to "medically handle the added pressures of reliving her anxiety attack
and breakdown, which caused her to be hospitalized. She is now under
medication and was out of work for approximately 3 months. She was
under no condition to file an EEO complaint at that time".
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 determines that the record contains no evidence supporting
appellant's assertion on appeal that she was so mentally incapacitated
that she was incapable of meeting the forty-five day limitation period
for timely contacting an EEO Counselor. See Crear v. USPS, EEOC Request
No. 05920700 (October 29, 1992); Zelmer v. USPS, EEOC Request No. 05890164
(March 8, 1989).
However, appellant stated in her formal complaint that the discrimination
against her has been continuous from April 1998, through January 1999.
It has been held that where there is an issue of timeliness, the agency
always bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness. Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992). Moreover, where
as here, a complainant alleges recurring incidents of discrimination,
an agency is obligated to initiate an inquiry into whether any untimely
allegations fall within the ambit of the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (December 16, 1993)
(citing Williams). In the instant case, the agency did not address in its
final decision or on appeal the issue of whether allegations (1) - (7)
are part of a continuing violation. As the Commission held in Williams,
where an agency's final decision fails to address the issue of continuing
violation, the complaint "must be remanded for consideration of this
question and issuance of a new final agency decision making a specific
determination under the continuing violation theory".
Based on the record before us, we are unable to conclude whether or not
there was a continuing violation which would have extended or waived
the time limitation period in this case. Therefore, we find that the
agency must address appellant's allegation of a continuing violation.
Accordingly, the agency's decision dismissing allegations (1) - (7)
on the grounds of untimely EEO counselor is VACATED. Allegations (1) -
(7) are REMANDED in accordance with the Order below.
ORDER
The agency is ORDERED to conduct an inquiry sufficient to enable it
to make a reasoned decision as to whether to accept allegations (1)
through (7) pursuant to the continuing violation theory. The agency
shall conduct such an inquiry and issue a notice of processing regarding
these allegations and/or issue a final decision accepting or dismissing
any or all of the allegations within thirty (30) calendar days of the
date this decision becomes final. A copy of the notice of processing
and/or final agency decision 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. �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:
10/20/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations