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