John J. Connelly, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01995080 (E.E.O.C. Oct. 28, 1999)

01995080

10-28-1999

John J. Connelly, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John J. Connelly v. United States Postal Service

01995080

October 28, 1999

John J. Connelly, )

Appellant, )

)

v. ) Appeal No. 01995080

) Agency No. 4-C-190-1107-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's May 11, 1999 decision dismissing a

portion of appellant's complaint on the grounds of untimely EEO counselor

contact and failure to comply with the agency's request for additional

information is not proper pursuant to the provisions of 29 C.F.R �1614.107

(b) and (g).

The record shows that appellant sought EEO counseling on March 5, 1996,

alleging that he had been discriminated against on the basis of mental

disability (brain injury).

Subsequently, appellant filed a formal complaint, alleging that he

had been discriminated against on the basis of mental disability when

from "December 1994 through March 1995", the following incidents took

place: (1) on an unspecified date, a supervisor criticized his work by

telling him he was putting the mail into the wrong frames and stated

that his speed was too slow; (2) on an unspecified date, he received

a verbal warning about his speed and accuracy not being sufficient;

(3) on an unspecified date, a supervisor made him get retrained; (4)

on an unspecified date, a supervisor constantly watched him which caused

him to be unable to do his job; (5) on an unspecified date, a supervisor

kept a log of his lateness and constantly showed him the list; (6) on

March 8, 1995, he resigned because he did not receive more guidance in

understanding the job; (7) in November 1995, he was refused a custodian

position because of poor attendance; and, (8) in January 1996, he was

refused a transfer to Folsom Post Office because of poor attendance.

By letter dated March 30, 1999, the agency asked appellant to "briefly

state specifically what happened to you from December 94 to March 1995.

You are to provide a specific date for each incident". Appellant was

also advised that his complaint could be dismissed if he did not provide

the requested information within 15 calendar days of his receipt of the

request.

By letter dated April 2, 1999, appellant informed the agency that he

was unable to provide "specific incident dates" because his learning

disability prevented him from establishing such a file. Appellant further

stated that at the time of the incidents he was not aware "of the total

situation and its grave impact on [his] life until it was over". Finally,

appellant informed the agency that although he had not documented the

incidents he had observed his supervisor "document incidents as they

occurred".

The agency issued a final decision accepting allegation (8) for

investigation. Allegations (1) - (7) were dismissed on the grounds of

untimely EEO counselor contact. The agency noted that the incidents

raised in the dismissed allegations had not occurred during the 45 days

immediately preceding appellant's initial EEO counselor contact on March

5, 1996. The agency also dismissed allegations (1) - (7) on the basis

of appellant's failure to cooperate with the agency's written request

for additional information dated March 30, 1999. The agency noted that

appellant's April 2, 1999 response "failed to provide specific dates

and specific actions or situations relating to each incident".

On appeal, appellant's attorney contends that appellant "is learning

disabled. His disability resulted from an early childhood brain injury

which damaged part of his brain which enables him to make decisions and

act independently. In order to fully understand a process [appellant]

needs constant repetition so that a procedure and the steps it takes to

complete a task become routine to him". Appellant's attorney also claims

that appellant was hired by the agency through a disability program.

In support of appellant's complaint, the attorney argues that although

appellant was continuously harassed by his supervisor, he wasunaware of

his EEO rights and he "simply could not have appreciated that the actions

that were occurring at his job ... may have constituted discrimination".

The attorney argues that appellant was unaware of his EEO rights and

could not be expected to "learn EEO complaint procedures as well"

because his job duties "took all his mental facilities to keep up with

the pace of the mail sorter position". Concerning the agency's written

request for information, the attorney argues that "appellant addressed

the specific question ... to the best of his ability and to the best

of his recollection given the three year span between the filing of his

complaint in 1996, and the request for information in 1999".

EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall

dismiss a complaint or portion of a complaint where the agency has

provided the complainant with a written request to provide relevant

information or otherwise proceed with the complaint, and the complainant

has failed to respond to the request within 15 days of its receipt.

The regulation also provides that "instead of dismissing for failure to

cooperate, the complaint may be adjudicated if sufficient information

for that purpose is available".

A review of appellant's formal complaint, the agency's written request

for information and appellant's April 2, 1999 response, persuades

the Commission that there is sufficient information in the record to

adjudicate the complaint. Accordingly, the agency erred by dismissing

allegations (1) - (7) on the basis of appellant's failure to cooperate

with the agency's March 30, 1999 request for additional information.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).

A fair reading of appellant's complaint reflects that appellant

alleged that allegations (1) - (7) are part of a continuing violation.

The Commission has held that the time requirements for initiating EEO

counseling may be waived as to certain allegations within a complaint

when the complainant alleges 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. United States Postal Service,

EEOC Request No. 05901150 (December 28, 1990).

In his complaint, appellant raised incidents which allegedly occurred

on a continuous basis from 1994 through January 1996. 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".

Moreover, when an appellant claims that a physical, psychiatric or

psychological condition prevents him from meeting a particular deadline,

the Commission has held that in order to justify an untimely filing,

the appellant must be so incapacitated by the condition as to render

him physically or mentally unable to make a timely filing. See Crear

v. United States Postal Service, EEOC Request No. 05920700 (October 29,

1992); Weinberger v. Department of the Army, EEOC Request No. 05920040

(February 21, 1992); Hickman v. Department of the Navy, EEOC Request

No. 05910707 (September 30, 1991); Johnson v. Department of Health and

Human Services, EEOC Request No. 05900873 (October 5, 1990); and Zelmer

v. United States Postal Service, EEOC Request No. 05890164 (March 8,

1989). The Commission finds that there is insufficient evidence in the

record to determine whether appellant suffers from a brain injury that

rendered him mentally incapable of initiating EEO Counselor contact in a

timely manner. Accordingly, the agency is ordered to make a determination

on the issue of appellant's mental ability to initiate timely contact

with an EEO Counselor.

In summary, 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; and whether appellant suffers from a

mental disability that rendered him incapable of timely contacting

an EEO Counselor. Therefore, we find that the agency must address

appellant's allegation of a continuing violation and appellant's purported

mental incapacity. The agency's dismissal of allegations (1) - (7) on

the grounds of appellant's failure to cooperate was not proper and is

hereby REVERSED. 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

Within thirty (30) calendar days of the date that this decision becomes

final, 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 is

also ORDERED to provide appellant with the opportunity to show that he

suffers from a brain injury which prevented him from timely contacting an

EEO Counselor. Thereafter, the agency shall 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:

10/28/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations