Janet Smith, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 1999
01983789 (E.E.O.C. May. 26, 1999)

01983789

05-26-1999

Janet Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Janet Smith v. United States Postal Service

01983789

May 26, 1999

Janet Smith, )

Appellant, )

) Appeal No. 01983789

v. ) Agency No. 4D4000029-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning her 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. The final agency decision was dated March

31, 1998, and received by appellant on April 7, 1998. The appeal was

postmarked on April 15, 1998. The appeal is accepted in accordance with

EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed one of

appellant's allegations for untimely EEO Counselor contact.

BACKGROUND

Appellant initially contacted an EEO Counselor on January 28, 1997.

The EEO Counselor's report, submitted December 2, 1997, states that

appellant alleged discrimination on the basis of race (Caucasian) and

color (white) when management did not discipline a Black co-worker (C-1)

who used appellant's shoe as an ashtray on January 23, 1997. Appellant

then filed a formal complaint, dated May 7, 1997. In it appellant

alleged discrimination on the basis of race (Caucasian) and color (not

specified) when C-1 used her shoe as an ashtray (allegation one), but

also when, on September 25, 1995, another Black co-worker (C-2) forged

appellant's initials on CMU mail (allegation two). Appellant asserts,

in her formal complaint, that she has "had to tolerate harassment for

twelve years from [the same] two Black employees", C-1 and C-2, and that

management refused to discipline these individuals. The "Information

for Precomplaint Counseling" identifies these management officials as

S-1, S-2 and S-3. In the Final Agency Decision (FAD), dated March 31,

1998, the agency accepted allegation one, but dismissed allegation two

as untimely. The agency found allegation two to be untimely because

the alleged discriminatory event took place on September 25, 1995.

Appellant, however, did not contact an EEO Counselor until January

28, 1997, approximately one year and four months after the alleged

discriminatory action took place. The agency did not address, either

in the FAD or in its appeal statement, whether the two allegations of

harassment constituted a continuing violation. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of the

date of the matter alleged to be discriminatory or within 45 days of the

effective date of the personnel action. The Commission has held that

the time requirement for contacting an EEO Counselor can be waived as to

certain allegations within a complaint when the complainant alleges: 1)

that although she waited more than 45 days to initiate EEO counseling,

she did not suspect discrimination at the time the action in question

occurred, see Bracken v. Postal Service, EEOC Request No. 05900065 (March

29, 1990); or 2) she was unaware of the 45-day time period, see Pride

v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993); or 3)

a continuing violation, that is, a series of related discriminatory acts,

one of which falls within the time period for contacting an EEO Counselor.

See McGivern v. USPS, EEOC Request No. 05901150 (December 28, 1990).

In the instant case, appellant did not allege that she did not suspect

discrimination at the time it occurred or that she was unaware of the

45 days to initiate counseling. She does, however, appear to allege a

continuing violation. She states, in her formal complaint, that she

had been harassed for the past 12 years by the same two employees,

C-1 and C-2, and that management had done nothing about the harassment.

A determination of whether a series of discrete acts constitutes

a continuing violation depends on the interrelatedness of the past

and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981

(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to

determine whether the acts are interrelated by a common nexus or theme.

See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308

(June 13, 1989). Should such a nexus exist, appellant 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" challenged by the appellant. Scott v. Claytor, 469 F.Supp. 22,26

(D.D.C. 1978).

Relevant to the finding of a unifying theme are whether the same officials

were involved in the adverse actions and whether the incidents were of

a similar nature. Verkennes v. Department of Defense, EEOC Request

No. 05900700 (September 21, 1990). Also relevant to the inquiry is

whether appellant had prior knowledge or suspicion of discrimination

and the effect of this knowledge. Blighton v. Department of Treasury,

EEOC Request No. 05940483 (November 29, 1994)(citing Sabree v. United

Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st

Cir. 1990)). Incidents which are sufficiently distinct to trigger

the running of the limitations period do not constitute a continuing

violation. Berry.

The Commission finds that appellant has not established that allegation

two is part of a unifying theme to warrant a finding of continuing

violation. Appellant points to the same management officials, S-1,

S-2 and S-3 in both allegations. The allegations are arguably of a

similar nature; although one allegation involves forgery and the other

misuse of appellant's belongings, both involve a failure by management to

discipline those responsible. Allegation two, however, was a separate

and discrete event which should have triggered appellant's reasonable

suspicion that she had been subjected to discrimination. The incident

involved in allegation two occurred one year and four months prior to

the January 28, 1997, counselor contact. In addition, appellant states

that C-1 and C-2 have harassed her for the last twelve years and that

management has not disciplined them. Appellant did not, however, give

any specific instances of the harassment occurring over the past twelve

years beyond those incidents contained in allegations one and two.

We, therefore, agree with the agency that allegation two is untimely.

However, appellant may raise allegation two as background evidence in

support of her harassment claim. (See e.g Ferguson v. Department of

Justice, EEOC Request No. 05970792 (March 31, 1999)).

CONCLUSION

Accordingly, the decision of the agency was proper and 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. 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. If you file a request to reconsider and also file a

civil action, 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:

May 26, 1999

______________ ______________________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations