John W. Coleman, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 23, 2000
01990538 (E.E.O.C. Mar. 23, 2000)

01990538

03-23-2000

John W. Coleman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John W. Coleman v. United States Postal Service

01990538

March 23, 2000

John W. Coleman, )

Complainant, )

)

v. )

) Appeal No. 01990538

William J. Henderson, ) Agency No. 4-I-630-0138-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Complainant filed an appeal with this Commission from a final agency

decision (FAD), dated October 2, 1998, dismissing his complaint for

untimely counselor contact.<1> Accordingly, the Commission accepts the

appeal in accordance with EEOC Order No. 960, as amended.

On May 8, 1998, complainant contacted an EEO counselor regarding

claims of discriminated based on physical disability, sex, and age.

Informal efforts to resolve complainant's concerns were unsuccessful.

Accordingly, on September 2, 1998 complainant filed a formal complaint.

The agency defined the claim as follows: On February 10, 1998 complainant

was told by management that his performance was slow and if he did not

show improvement, he would be looking for another job.

The agency dismissed complainant's complaint for untimely counselor

contact. The FAD stated that complainant should have contacted the

counselor within forty-five days of the alleged incident, but that

complainant did not contact the EEO office until May 8, 1998.

On appeal, complainant argues that he made several efforts to resolve

the matter by other means, such as: filing a grievance, speaking

with union representatives, contacting his Congressman, and writing

to the Postmaster General. In addition, complainant contends that he

was initially threatened on February 10, 1998 but that the harassment

continued until the time he initiated counseling.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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 time limitation is

not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

As an initial matter, we note that complainant cannot rely on his

alternative efforts to resolve the alleged discrimination to extend the

time limit for contacting an EEO counselor. The Commission has held

that the use of the grievance process or other internal appeal process

does not toll the time limit for contacting an EEO Counselor. See Speed

v. USPS, EEOC Request No. 05921093 (June 24, 1993).

The Commission, however, has held that the time requirements for

initiating EEO counseling could be waived as to certain claims 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. See McGivern v. USPS,

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

Based on a review of the record, we find that complainant's complaint

was not confined merely to the matter addressed in the agency's final

decision, relating to a statement purportedly made by a supervisor

in February 1998. Instead, a fair reading of complainant's complaint

reflects that complainant has alleged a pattern of harassment. In his

formal complaint, complainant indicated that after the February

10, 1998 incident he "continued to be targeted..." Further, he

described the date of the alleged event as "2-10-98 and thereafter."

Similarly in complainant's pre-complaint counseling form, he stated

that he had been "targeted several times". On appeal, complainant

reiterates his contention that the alleged harassment continued until

he contacted a counselor. The agency, however, has failed to conduct

a continuing violation analysis, as it must where there is an alleged

pattern of harassment. See Guy v. Department of Energy, EEOC Request

No. 05930703 (January 4, 1994). Therefore, the agency decision dismissing

complainant's complaint was improper and is VACATED. The complaint is

REMANDED to the agency for further processing in accordance with this

decision and the Order below.

ORDER

The agency is ORDERED to:

Schedule in writing a meeting between complainant and an EEO counselor

so that all the issues in complainant's September 2, 1998 complaint

are identified, including the dates and descriptions of the specific

incidents following February 10, 1998. After the meeting(s), the

counselor must issue a new counselor's report concerning the meeting(s)

and defining the complaint. Complainant shall not be required to

refile his September 2, 1998 complaint.

The agency shall notify complainant in writing of any claims it is

accepting for investigation or issue a FAD dismissing any claims. Such

a FAD must list all claims being dismissed, provide the grounds for

dismissal, and cite the evidence relied on. If the dismissal is based

on untimely EEO counselor contact, the FAD must contain a continuing

violation analysis.

The agency shall complete the above ordered actions, within sixty (60)

calendar days of the date this decision becomes final.

A copy of the agency's letter to complainant arranging a meeting with

an EEO counselor, and a copy of the acceptance letter and/or FAD must

be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408),

and 29 C.F.R. �1614.503(g). Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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 (Z1199)

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:

March 23, 2000

______________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________ _________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.