01976095
01-20-1999
Nicholas C. Synan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Nicholas C. Synan v. United States Postal Service
01976095
January 20, 1999
Nicholas C. Synan, )
Appellant, )
)
v. ) Appeal No. 01976095
) Agency No. 1-C-151-0010-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find the agency has committed no reversible legal error in its July 8,
1997 final decision (FAD-1) partially dismissing appellant's December 12,
1996 formal EEO complaint for untimely EEO Counselor contact, pursuant
to 29 C.F.R. �1614.107(b), in pertinent part. We are not persuaded by
appellant's arguments in his August 4, 1997 appeal to reach a contrary
result.<1>
In FAD-1, the agency accepted the following allegation for investigation,
that, for prohibited reasons: (1) appellant did not receive Sunday premium
pay from August 11, 1996, to September 23, 1996. FAD-1 dismissed
appellant's allegation (2), to wit: appellant did not receive Sunday
premium pay from October 4, 1994, to August 10, 1996. FAD-1 found, with
regard to allegation (2), appellant's September 25, 1996 EEO Counselor
contact was unjustifiably beyond the 45 days time limitation set forth
at 29 C.F.R. �1614.105(a)(1).<2>
We find appellant has not disputed, on appeal, FAD-1's determination
regarding his September 25, 1996 EEO Counselor contact; nor has he
claimed he was not aware of the applicable time limitation of 45 days
for initiating such contact. Although FAD-1 should have conducted an
analysis into whether appellant's allegations constituted a continuing
violation, we find such error to be harmless under the facts of this
case, for the reasons that follow.
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. McGivern v. U.S. Postal Service, EEOC
Request No. 05901150 (December 28, 1990). In determining whether a
continuing violation exists, the Commission has relied on the decision
in Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983),
wherein the Court set forth three relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
In addition, an agency should consider whether a complainant had
prior knowledge or suspicion of discrimination and the effect of this
knowledge. Sabree v. United Brotherhood of Carpenters & Joiners Local
No. 33, 921 F.2d 396 (1st Cir. 1990). The Commission described Sabree,
supra, as holding that a plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that s/he is being discriminated against until
s/he experienced a series of acts and is thereby able to perceive the
overall discriminatory pattern. Hagan v. Department of Veterans Affairs,
EEOC Request No. 05920709 (Jan. 7, 1993).
In the present case, we find that pay checks have the degree of permanence
necessary to put a complainant on notice of the need to seek, promptly,
EEO counseling. Perez v. Department of Health and Human Services,
EEOC Appeal No. 01950452 (May 24, 1995)(citation omitted), request to
reconsider denied, Perez v. Department of Health and Human Services,
EEOC Request No. 05950697 (March 1, 1996).
We also find, in the present case, as we indicated above, appellant
has not claimed he was unaware of the applicable time limitation of 45
days for initiating EEO Counselor contact. We find, in this regard,
that one of appellant's bases of alleged discrimination was reprisal
for prior EEO activity, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. �2000e et seq. We further find that
appellant has an extensive history of EEO participation.
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons,
the Commission hereby AFFIRMS the FAD's dismissal of allegation (2).
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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:
January 20, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1We note appellant has not challenged, on appeal, the FAD's framing of
his complaint.
2During the pendency of the present appeal, the agency issued FAD-2,
dated November 26, 1997, finding no discrimination on the merits of
allegation (1). We find no record appellant appealed FAD-2; hence,
FAD-2 is not before us. In this regard, we note that the Commission's
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110, October 22,
1992), Ch. 4, �III(C), permits agencies to investigate the accepted
portions of partially dismissed complaints.