Mark D. Shenkan, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01985106 (E.E.O.C. Sep. 14, 1999)

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noted that this letter rescinded an oral offer of employment due to a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.