Laura N. Harris, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 29, 1998
05970274 (E.E.O.C. Oct. 29, 1998)

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.