01985106
09-14-1999
Mark D. Shenkan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Mark D. Shenkan, )
Appellant, )
)
v. ) Appeal No. 01985106
) 01992808
) Agency No. 4C164003198
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
_________________________________)
DECISION
Mark D. Shenkan (hereinafter appellant) filed two appeals with this
Commission from two final decisions of the agency concerning his
complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et
seq. The first final agency decision (hereinafter FAD 1)--a partial
acceptance/partial dismissal--was received by appellant's attorney on
June 4, 1998. The appeal was postmarked June 9, 1998. Therefore, the
appeal is timely (see 29 C.F.R. � 1614.402(a)). The second final agency
decision (hereinafter FAD 2)--a finding of no discrimination on the issue
accepted for investigation in FAD 1--was issued on January 20, 1999.
The appeal was postmarked February 18, 1999. Therefore, the appeal is
timely.<1> Accordingly, both appeals are accepted in accordance with
EEOC Order No. 960, as amended.
At the request of appellant and because they involve substantially similar
facts and relate to the same matter, the appeals are now consolidated.
29 C.F.R. � 1614.606.
BACKGROUND
Appellant was an applicant for employment at the time of the alleged
discriminatory actions. He initiated contact with an EEO Counselor
on March 17, 1998. Informal efforts to resolve his concerns were
unsuccessful and on April 8, 1998, appellant filed a formal complaint
of discrimination.<2> On June 2, 1998, the agency issued FAD 1 which
characterized appellant's complaint as raising three allegations.
These allegations claimed discrimination based on mental disability
(bipolar disorder) when:
(1) appellant was denied employment as a Casual Mail Carrier at the
Pittsburgh Post Office by letter dated November 28, 1995 (the complaint
noted that this letter rescinded an oral offer of employment due to a
doctor's finding that appellant was not fit for duty);
(2) appellant was denied employment at the New Castle Post Office on an
unspecified date in November 1997; and
(3) to date<3>, appellant has received no response to his February 9,
1998 request for employment reconsideration from the Personnel Manager<4>,
New Castle Post Office.
Though not mentioned in FAD 1, the complaint argued that these actions
were taken because the agency did not want to accommodate appellant's
known disability. The complaint also characterized these actions as
establishing a policy of discrimination.
The agency accepted Allegation No. 3 for investigation, but dismissed
Allegation Nos. 1 and 2 under 29 C.F.R. � 1614.107(b) for failure to
timely initiate contact with an EEO Counselor. The agency noted that
appellant was denied employment in November 1995 and November 1997,
yet did not initiate counseling until April 9, 1998, well beyond the 45
day time period.<5>
On January 20, 1999, the agency issued FAD 2, which addressed Allegation
No. 3. Therein, the agency found no discrimination, asserting that
appellant had not established a prima facie case of disability
discrimination. FAD 2 also argued that the agency had offered a
legitimate nondiscriminatory reason for its action which appellant had
not shown to be pretext.
FAD 1
CONTENTIONS ON APPEAL
In response to FAD 1, appellant argues on appeal that he was not aware
that the post office had a policy to disqualify job applicants based on
their mental disability until he was rejected because of his disability
from employment with the New Castle Post Office.<6> Appellant argues that
he has satisfied the requirements of the continuing violation theory.<7>
The agency, on appeal, argues that appellant's attempt to justify his
untimeliness by asserting that his allegations involve a continuing
violation is unsuccessful. The agency notes that appellant alleged that
his attorney was told on August 3, 1997, that the agency had a policy
to reject casual carrier applicants who have a disability due to the
expense and time involved in processing and training, and that this
should have made him reasonably suspicious of discrimination.
ANALYSIS AND FINDINGS
Before turning to the allegations described in FAD 1, we note that
appellant raised an allegation in his complaint which was not addressed
in the final agency decision.<8> In the complaint dated May 6, 1998,
appellant alleges that the EEO counselor impermissibly demanded that
appellant submit a completed PS Form 2485 (Medical Examination and
Assessment Form), contrary to ADA law which holds that medical evidence
should be requested only when a conditional offer of employment is
made. The Commission has held that an agency's failure to address an
allegation raised in a complaint is tantamount to a dismissal. See Kapp
v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995).
Because the agency failed to provide proper grounds for such dismissal
under the regulations, we find this dismissal by omission to be improper
and REMAND the allegation for further processing in accordance with the
ORDER below and applicable regulations.
Turning now to the allegations addressed in FAD 1, EEOC Regulation 29
C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. United States Postal Service, 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.
In the case at hand, appellant was denied employment on November 28,
1995, and on an unspecified date in November 1997. He did not initiate
EEO counseling until March 17, 1998, well beyond the 45 day limitations
period. Moreover, he should have reasonably suspected discrimination as
early as November 28, 1995, when he was told that his offer of employment
was rescinded because the doctor had found he was not fit for duty,
or, at the very latest, on August 3, 1997, when he was told that the
post office had a policy of rejecting casual carrier applicants who had
a disability. Despite this information, appellant did not initiate EEO
counseling until March 17, 1998.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations 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. United States Postal
Service, EEOC Request No. 05901150 (December 28, 1990); Starr v. United
States Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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 Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). 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. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
The Commission has held that an appellant who believes he has been
subjected to discrimination has an obligation to file promptly with the
EEOC or lose his claim, while an appellant who is unable to appreciate
that he is being discriminated against until he experiences a series of
acts and is thereby able to perceive the overall discriminatory pattern,
can make use of the continuing violation theory. See Hagan v. Department
of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993).
In the instant case, appellant alleges a continuing violation theory on
appeal, noting that the agency has a policy of discriminating against
those with mental disabilities. While appellant seems to rely on the
November 1997 denial of employment as the timely charge, we assume
he intended to argue that Allegation No. 3, the allegation accepted
for investigation, is the timely charge and that Allegation Nos. 1 and
2 are part of the same series of discriminatory acts.<9> However, we
note that the disputed actions, two denials of employment, were distinct
and permanent events that should have triggered appellant's reasonable
suspicion of discrimination.
Moreover, statements made to appellant on November 28, 1995 (that
the doctor had found him not fit for duty) and on August 3, 1997 (that
the agency had a policy of not hiring casual carrier applicants with
disabilities) indicate that he had prior suspicion of discrimination and
had an obligation to seek counseling much earlier than March 17, 1998.
Therefore, we find that the disputed agency actions raised in Allegation
Nos. 1 and 2 did not constitute part of a continuing violation.
However, while Allegation Nos. 1 and 2 are untimely, they must still be
considered as background evidence in the investigation of appellant's
remanded allegation. See Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999); Silva v. United States Postal Service,
EEOC Request No. 05960115 (June 20, 1996).
Accordingly, the agency's decision to dismiss Allegation Nos. 1 and 2
for untimely contact with an EEO Counselor was proper and is AFFIRMED.
FAD 2
The agency's investigation of Allegation No. 3 was completed on November
6, 1998. On January 20, 1998, the agency issued its decision, finding no
discrimination. However, because we find that Allegation No. 3 fails to
state a claim, we will not analyze appellant's argument on the merits.<10>
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that fails
to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). The only proper questions in determining whether a
complaint raises allegations within the purview of the EEO process are
whether a complainant is an aggrieved employee and whether he or she has
alleged employment discrimination on a basis covered by the EEO statutes.
Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2,
1990); Cartrett v. United States Postal Service, EEOC Request No. 05950744
(February 8, 1996).
The Commission's federal sector case precedent has long defined
an �aggrieved employee� as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for
which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Here, appellant alleged that
he received no response to his request for employment reconsideration.
This allegation is not sufficient to render him aggrieved, as it has
nothing to do with a term, condition, or privilege of employment.
Therefore, he has failed to state a claim and Allegation No. 3 should
have been dismissed under 29 C.F.R. � 1614.107(a).
CONCLUSION
Accordingly, the agency's decision to dismiss Allegation Nos. 1 and 2
for failure to timely contact an EEO Counselor was proper and is AFFIRMED.
The agency's finding of no discrimination in regard to Allegation No. 3
was improper in that the allegation should have been
dismissed for failure to state a claim. FAD 2 is therefore AFFIRMED
as modified.
The agency's failure to address the allegation raised in appellant's
complaint regarding the improper request for medical evidence was an
improper dismissal and is REVERSED and REMANDED for further processing
in accordance with the ORDER below and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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:
Sept. 14, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER:
01985106
01992808
AGENCY NUMBER:
4C164003198
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Kerry E. Leibig
July 14, 1999
(SUPERVISOR):
Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S)
Mark D. Shenkan
2.) (AGENCY)
United States Postal Service
3.) (DECISION)
FAD(s) Modified (1 involved agency decision on merits, but failed to
state claim)
4.) (STATUTE(S)
Rehabilitation Act
5.) (BASIS(ES)
HM
6.) (ISSUE(S)
H1, (A2)
7.) (TYPIST/DATE/DISK)
KL0/ July 13, 1999
SPELL CHECK:
YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
? 3M - OFO REVERSED AND REMANDED
X 4J - OFO MODIFIED FAD
X 4Q - COMPLIANCE
REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]
1 The dismissal of a complaint or a portion of a complaint may be
appealed to the Commission within thirty (30) calendar days of the date
of the complainant's receipt of the dismissal or final decision. See 29
C.F.R. � 1614.402(a). While the agency failed on appeal to supply a
certified mail receipt or any other material capable of establishing that
date in regard to FAD 2, the appeal was postmarked within thirty (30)
calendar days of the date the final decision was issued and therefore
clearly was filed within thirty (30) calendar days of the date of
appellant's receipt of the final decision.
2 FAD 1 refers to April 9, 1998, as the date appellant requested
counseling and May 7, 1998, as the date he filed a formal complaint.
However, a review of PS form 2570 (Counselor's Inquiry Report) reveals
March 17, 1998, to be the date appellant initiated contact. The record
is contradictory in regard to the date of appellant's formal complaint.
A letter from appellant's attorney dated April 8, 1998, notes that it
is to serve as �an official filing of an EEOC complaint�. However, the
record also includes a letter entitled �Complaint of Discrimination� dated
May 6, 1998. While these inconsistencies do not bear on the immediate
decision, we note them for the record and refer to the earlier of each
date supported by the record.
3 This language was used in appellant's formal complaint dated May
6, 1998. In his appeal brief to FAD 2, dated March 16, 1999, appellant
alleged that he had still received no response to his request.
4 In the record, this individual is also called the Supervisor, Customer
Services Support.
5 As noted in the previous footnote, the record reveals that appellant
actually initiated contact on March 17, 1998. However, had the agency
cited the correct date, we assume it still would have decided that
appellant failed to comply with the 45 day time limit.
6 According to the record, this took place sometime in November 1997.
7 Appellant's attorney refers to a �300 day statute of limitations�.
We note that the regulation under which the agency dismissed
appellant's allegations is 29 C.F.R. � 1614.107(b), which refers to
29 C.F.R. �1614.105: �An aggrieved person must initiate contact with
a Counselor within 45 days of the date of the matter alleged to be
discriminatory, or in the case of personnel action, within 45 days of
the effective date of the action.� No 300 day limitations period is
relevant to this decision.
8 This allegation was not addressed in FAD 1 or FAD 2.
9 We make this assumption because the denial of employment in November
1997 is clearly untimely, given that appellant did not initiate contact
with an EEO Counselor until March 17, 1998.
10 Appellant raises a number of contentions on appeal, both of FAD 1
and FAD 2, that pertain to Allegation No. 3. None of these contentions
change the fact that Allegation No. 3 fails to state a claim.