05970274
10-29-1998
Laura N. Harris, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Laura N. Harris v. United States Postal Service
05970274
October 29, 1998
Laura N. Harris, )
Appellant, )
)
v. ) Request No. 05970274
) Appeal No. 01962989
William J. Henderson, ) Agency No. 4C-175-1062-95
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 23, 1996, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Laura N. Harris v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01962989 (November 19,
1996), received on November 22, 1996.<1> EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the agency's request to reconsider is GRANTED.
ISSUE PRESENTED
The issue presented herein is whether the previous decision was correct
when it reversed the agency's dismissal of six of the allegations
contained in appellant's complaint.
BACKGROUND
The record shows that appellant initiated EEO counseling on July 27, 1995
and filed a formal EEO complaint on November 11, 1995. Specifically,
she alleged discrimination based on sex and sexual harassment when:
1) on September 2, 1995, she was removed from her acting supervisor
position and detailed to a temporary position in Lancaster;
2) on or about July 27, 1995, she was not interviewed for a vacant
position and, subsequently, on September 1, 1995, she was not selected
for the position of Customer Service Supervisor, pay level EAS-16;
3) on August 23, 1995, Supervisor B notified her that the Postmaster did
not want the Letter of Warning she had prepared for Union Official H,
relative to an August 18, 1995 incident, to be issued;
4) on August 18, 1995, Union Official H said to appellant "I don't have
to listen to you run your big fat mouth," to which Supervisor B responded
by sending Union Official H to his work station and telling appellant
to get a hold of herself;
5) she was not given overtime opportunities during the week of August 1,
1995; on August 9, 1995; or during the period from August 16 through
September 1, 1995;
6) on July 27, 1995, she was denied a temporary detail assignment to
Operations Program Support to work with [an agency employee];
7) following the July 3, 1995 issuance of a dress code, the Postmaster,
on July 14, 1995, spoke to her about her attire stating that her skirt
was not appropriate for work;
8) her starting time was changed from 9:45 a.m. to 4:00 a.m. for the
period from June 28, 1995 through September 1, 1995;
9) on May 16, 1995, she requested the removal of an offensive cartoon
from public display;
10) she notified the Postmaster of a confrontation between herself and
Union Official H on May 13, 1995, relative to Union Official H's use of
an agency vehicle for a food drive. The Postmaster, however, apologized
to Union Official H for appellant's behavior;
11) on April 20, 1995, during a meeting, the Postmaster said that in
order to get Union Official H fired she and another female employee
should rip their shirts and claim that Union Official H attacked them;
12) on February 2, 1995, the Postmaster did not support her with regard
to a discussion she had with an employee on January 31, 1995;
13) on January 31, 1995, she attended a meeting with Union Official H.
During the meeting, Union Official H informed her that he falsified his
DPS error numbers. Appellant said that she brought this matter to the
Postmaster's attention, but was told to let the matter drop; and
14) the Postmaster did not support her when she reported that, beginning
on January 25, 1995, Union Official H threatened and harassed her on an
almost daily basis.
On February 12, 1996, the agency issued a decision that accepted
allegations (1)-(8) for investigation. The agency dismissed allegations
(9)-(14) on the grounds that appellant sought EEO counseling in an
untimely manner. The previous decision, after discussing whether
appellant stated a claim of ongoing harassment, found that the agency
erred in dismissing the six allegations.<2> Consequently, the dismissal
of allegations (9) - (14) was reversed. We note, however, that the
previous decision did not specifically address the issue of whether
appellant contacted the EEO counselor in a timely manner regarding
allegations (9) - (14).
In its request to reconsider (RTR), the agency maintained that the
previous decision erred by not properly applying the continuing violation
theory. Appellant did not respond to the agency's request.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
the agency's request for reconsideration meets the criterion of 29
C.F.R. �1614.407(c)(2). We find that the previous decision erred by not
addressing whether appellant sought EEO counseling in a timely manner
with regard to the six allegations that were dismissed. It is therefore
the decision of the Commission to grant the agency's request.
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
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, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish
that (s)he was not aware of the time limit, that (s)he did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence (s)he was
prevented by circumstances beyond his or her control from contacting
the EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6,
1988)(interpreting 29 C.F.R. �1613.214(a)(1)(I) -the predecessor of 29
C.F.R. �1614.105(a)(1)).
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint when
the complainant alleges a continuing violation. A continuing violation
has been defined as a series of related discriminatory acts, one of
which falls within the time period for contacting an EEO counselor.
McGivern v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990). The courts have established three factors to
determine if the acts constitute a continuing violation: (1) whether
the same type of discrimination is present in all of the allegations;
(2) whether the alleged violations are recurring; and (3) whether the
discriminatory acts involved were of such permanence or finality to
trigger the employee's duty to assert his or her rights. See 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. 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 appellant.
Scott v. Clayton, 469 F. Supp. 22, 26 (D.D.C. 1978).
Finally, we note that courts have held that in determining whether a claim
for continuing violation is stated, it is important to consider whether
appellant had prior knowledge or suspicion of discrimination. See Sabree
v. United Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d
396 (1st Cir. 1990). Moreover, it is necessary to distinguish between
a complainant who believed he had been subject to discrimination, and
therefore had the obligation to file promptly or lose his claim, versus
a complainant who is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive the overall discriminatory pattern. Hagan v. Department of
Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993).
Allegations (9),(10),(11),(12),(13) and (14)
Based on a careful review of the record, we find that the facts available
to appellant had a degree of permanence that should have caused her to
suspect that the agency's actions, as set forth in the above allegations,
could have been motivated by unlawful discrimination; consequently, she
should have contacted an EEO counselor prior to the expiration of the
45-day time limitation period that followed each allegation. Therefore,
we find that appellant was untimely when she initiated contact on July
27, 1995.<3>
CONCLUSION
After a review of the agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. �1614.407(c)(2). It is therefore
the decision of the Commission to GRANT the request. The decision in EEOC
Appeal No. 01962989 (November 19, 1996) is hereby REVERSED. The agency's
final decision is AFFIRMED. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
OCT 29, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
1Sunday, December 22, 1996, was the 30th day for filing the agency's
request to reconsider in a timely manner; however, 29 C.F.R. �1614.604(d)
allows the time period to be extended to the next business day, Monday,
December 23, 1996.
2A review of the previous decision indicates that notwithstanding the
fact that the agency accepted the first eight allegations of appellant's
complaint, the previous decision reversed the agency's FAD. We find that
the intent of the previous decision was only to reverse that portion
of the FAD that pertained to the dismissed allegations. Consequently,
this decision only pertains to allegations (9)- (14) of appellant's
complaint.
3Appellant is not precluded from raising these allegations as background
evidence with respect to the accepted allegations of harassment.