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.