01990364
01-18-2000
Lisa F. Guarino, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lisa F. Guarino v. United States Postal Service
01990364
January 18, 2000
Lisa F. Guarino, )
Complainant, )
)
v. ) Appeal No. 01990364
) Agency No. 4-G-700-1284-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 25, 1995, complainant filed a formal complaint of employment
discrimination, alleging a violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. on the basis of sex
(female).<1> In the complaint, complainant alleged that from January
1995 through August 1995, her hours were cut unnecessarily, her leave
was taken from her unnecessarily, and she did not receive one pay check.
On July 12, 1996, the agency issued a final decision (FAD) dismissing the
complaint for failure to timely contact an EEO Counselor. The agency
defined complainant's claims as alleging that she was harassed and
denied light duty continuously from January 18, 1995 through July 5,
1995. In its FAD, the agency found that complainant knew her light duty
assignment was denied on May 15, 1995, but failed to contact a counselor
until fifty-one days later, on July 5, 1995.
Complainant, through her attorney, appealed the dismissal to this
Commission (EEOC Appeal No. 01965992). On April 17, 1998, the Commission
agreed that complainant's July 5, 1995 counselor contact was untimely
with respect to the May 15, 1995 notice, but remanded the complaint for
a supplemental investigation and determination of whether complainant
was aware of the forty-five day time limitation when the May 15, 1995
incident occurred.
The agency completed its supplemental investigation on July 1, 1998.
The investigation included an affidavit from the postmaster, claiming that
EEO information has been posted in several locations of complainant's
work site since 1985. The postmaster also asserted that periodic
"service talks" were conducted for agency employees concerning EEO
matters. The investigation also included a copy of the EEO posters,
which include information concerning the forty-five-day time limitation.
Based on the evidence gathered from the supplemental investigation, the
agency issued a new FAD on September 14, 1998, finding that complainant
had constructive notice of the applicable time limit. The agency also
found that no continuing violation existed, because complainant's claim
only involved one (untimely) incident � the May 15, 1995 denial of
light duty.
Complainant's attorney received a copy of the new FAD on September
21, 1998. On October 15, 1998, complainant appealed the new FAD to the
Commission. On appeal, complainant contends, through her attorney, that
no EEO posters were displayed at her work site. Also, complainant argues
that she was harassed continuously from January 18, 1995, through July
of 1995. Complainant contends that she requested a temporary light-duty
assignment on February 17, 1995, which was granted. After the light-duty
assignment expired, argues complainant, she attempted to renew her
light-duty assignment on March 7, 1995, April 5, 1995, and May 3, 1995.
After complainant received the denial on May 15, 1995, complainant
contends that she again requested light-duty on May 23, 1995, which was
conditionally granted pending a performance evaluation. Complainant also
asserts that she made a final request for light-duty on July 24, 1995,
and argues that agency officials harassed her by cutting her scheduled
hours, and docking thirty hours of her leave in weeks that she was not
scheduled to work thirty hours.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (Feb. 11, 1999). 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (Apr. 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (Dec. 28, 1990).
A determination of whether a series of discrete acts constitutes a
continuing violation depends on the interrelatedness of the past and
present acts. Berry v. Board of Supervisors of Louisiana State Univ.,
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. See Maldonado v. Department of the Interior, EEOC
Request No. 05900937 (Oct. 31, 1990); Verkennes v. Department of Defense,
EEOC Request No. 05900700 (Sept. 21, 1990); Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989). Should such a
nexus exist, complainant 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 complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
In the present complaint, complainant clearly raised more than one
incident of discrimination. In fact, the agency defined the complaint
as alleging harassment and being denied light duty "continuously" from
January 18, 1995 through July 5, 1995. The agency's finding that the
complaint only involved one incident from May 15, 1995, conflicts with
their own definition of the claim.
Complainant contends that she filed several requests for light duty after
the agency issued its May 15, 1995 denial. These more recent requests
involve a common theme or nexus with complainant's untimely incidents �
they involve the denial of light-duty assignments by the same supervisor.
Further, these more recent incidents occurred less than forty-five days
prior to complainant's counselor contact. Accordingly, the otherwise
untimely incidents must be accepted as a continuing violation.
See Howard-Grayson v. United States Postal Service, EEOC Request
No. 05990160 (Dec. 3, 1999) (finding that where timely and untimely
actions are interrelated by a common nexus or theme, a continuing
violation exists regardless of complainant's reasonable suspicion).
Therefore, the agency's FAD must be REVERSED.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claims must be
REMANDED for further processing.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights 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 (M1199)
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). 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:
January 18, 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.