Pearleen G. Howard-Grayson, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.

Equal Employment Opportunity CommissionDec 3, 1999
05990160 (E.E.O.C. Dec. 3, 1999)

05990160

12-03-1999

Pearleen G. Howard-Grayson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.


Pearleen G. Howard-Grayson, )

Complainant, ) Request No. 05990160

) Appeal No. 01980582

v. ) Agency No. 4K-220-0086-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atlantic Region) )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On November 9, 1998, Pearleen G. Howard-Grayson (complainant) timely<1>

initiated a request to the Equal Employment Opportunity Commission (the

Commission) to reconsider the decision in Pearleen G. Howard-Grayson

v. United States Postal Service, EEOC Appeal No. 01980582 (October

8, 1998).<2> EEOC regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision.

64 Fed. Reg. 37644, 37659 (1999)(to be codified and hereinafter referred

to at 29 C.F.R. � 1614.405(b)). The party requesting reconsideration must

demonstrate that: the appellate decision involved a clearly erroneous

interpretation of material fact or law, or the decision will have a

substantial impact on the policies, practices or operations of the

agency. 29 C.F.R � 1614.405(b)(1). For the reasons set forth herein,

complainant's request is granted.

Complainant filed a formal complaint on June 6, 1997, alleging

discrimination based on sex (female) and mental disability (emotional)

when: (1) from November 1995 through July 1996, despite an Office of

Workers' Compensation Programs (�OWCP�) accepted job-related injury,

complainant was subjected to a hostile work environment and harassment

regarding her job performance, causing her to go on Leave Without Pay

(�LWOP�) since approximately July 1996; and (2) on March 5, 1997,

complainant was issued a Notice of Removal. The agency's FAD accepted

Issue 2 for investigation as complainant contacted an EEO Counselor in a

timely manner. However, the agency dismissed as untimely the harassment

allegation in Issue 1, and the portion of complainant's allegation

regarding her placement on LWOP between July 1996 and February 17, 1997,

as she failed to initiate contact with the EEO Counselor within the

forty-five (45) days required by 29 C.F.R. � 1614.105(a)(2). The agency

accepted the portion of the LWOP allegation that fell within forty-five

(45) days of the EEO Counselor contact. On appeal, the Commission found

that as complainant had a reasonable suspicion of discrimination on the

dismissed allegation as early as August 21, 1996, but did not contact

the EEO Counselor regarding her allegation of a hostile work environment

until April 4, 1997, this allegation should be dismissed in its entirety

due to untimely EEO Counselor contact. Howard-Grayson v. United States

Postal Service, EEOC Appeal No. 01980582 (October 8, 1998).

In its initial decision affirming the agency's FAD, the Commission noted

that complainant alleged that allegations (1) and (2) constituted a

continuing violation, but applied the �reasonable suspicion� standard

and concluded that complainant's taking LWOP due to alleged harassment

should have triggered a reasonable suspicion of discrimination such

that she should have contacted an EEO Counselor earlier. Under the

Commission's new regulations, a request for reconsideration will

be granted when a party demonstrates that the appellate decision

involved a clearly erroneous interpretation of material fact or law.

29 C.F.R. � 1614.405(b)(1). While the Commission dismissed allegation

(1) for untimely EEO contact based on its application of the �reasonable

suspicion� standard, the Commission now holds that the time requirement

for contacting an EEO Counselor can be waived as to certain allegations

within a complaint when the complainant alleges a continuing violation,

that is, a series of related discriminatory acts, one of which falls

within the time period for contacting an EEO Counselor. Moreover,

evidence showing complainant had or should have had a reasonable suspicion

of discrimination more than forty-five (45) days prior to initiating

EEO Counselor contact will not preclude acceptance of the overall

claim of ongoing discrimination. Ferguson v. Dept. of Justice, EEOC

Request No. 05970792 (March 30, 1999); Meaney v. Dept. of the Treasury,

EEOC Request No. 05940169 (November 30, 1994); see generally Armstrong

v. Dept. of the Treasury, EEOC Appeal No. 01982573 (June 17, 1999),

req. for reconsideration denied, EEOC Request No. 05990860 (November 5,

1999). If one or more acts falls within the time period for contacting

an EEO Counselor, the complaint is timely with regard to all that

constitute a continuing violation, provided the acts are interrelated

by a common nexus. Meaney, supra; Verkennes v. Dept. of Defense,

EEOC Request No. 05900700 (September 21, 1990). Furthermore, where a

complainant has shown that his or her timely incident is interrelated to

incidents outside the 45 day time limit, the agency should not fragment

complainant's claim by dismissing, under the reasonable suspicion theory,

specific identified incidents outside the 45 day time limitation that

are associated with or connected to the subject matter and temporal

scope of the complaint. Ferguson, supra; Armstrong, supra.

After consideration of the record, we find that complainant has

established a continuing violation. Complainant's allegations are

connected by her claim that the actions were taken against her as part

of a pattern of continuing harassment due to a hostile work environment.

The Commission finds that complainant's allegation (1), which alleges

discriminatory harassment regarding her job performance and which caused

her to go on LWOP for eight months, is clearly linked to timely allegation

(2). In allegation (2), complainant claimed that she received the Notice

of Removal as the direct result of her LWOP status. Therefore, we find

that complainant's allegations are sufficiently interrelated and that

she has alleged a continuing violation. Meaney, supra. As a result,

the Commission finds that the agency made an erroneous interpretation

of law by dismissing complainant's allegation (1) under the reasonable

suspicion theory when there is a common nexus between the incidents

in that allegation and the allegation accepted for investigation.

29 C.F.R. � 1614.405(b)(1). Accordingly, complainant's request for

reconsideration is GRANTED, and the agency's partial dismissal of

allegation (1) is REVERSED.

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that complainant's

request meets the criteria of 29 C.F.R. �1614.405(b)(1), and it is the

decision of the Commission to GRANT complainant's request. The decision

of the Commission in Appeal No. 01980582 (October 8, 1998) is REVERSED

and the agency's final decision is MODIFIED. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

ORDER (E1092)

The agency shall accept and rejoin for processing the following claim

which alleges incidents of continuing harassment:

Whether the agency discriminated against complainant on the bases of

sex and mental disability when: (1) from November 1995 through July

1996, despite an Office of Workers' Compensation Programs accepted

job-related injury, she was subjected to a hostile work environment

and harassment regarding her job performance, ultimately causing her to

go on Leave Without Pay beginning in July of 1996; and (2) on March 5,

1997, complainant was issued a Notice of Removal.

In order to process the rejoined claim, the agency shall initially

ascertain the status of complainant's allegation (2), previously

accepted for investigation by the agency. If that allegation has

been fully investigated and assigned to an EEOC Administrative Judge

for hearing, the agency shall defer to the Administrative Judge

regarding the procedure for processing and hearing the allegations in

the rejoined claim. If allegation (2) is at the investigative stage,

the agency shall consolidate the rejoined claim and investigate both

allegations together. The agency shall issue to complainant a copy of

the investigative file when complete and also shall notify complainant

of the appropriate rights within ninety (90) calendar days of the date

that it receives this decision, 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. The agency shall acknowledge

to the complainant that it has received the remanded claim, including

the previously accepted allegation, within thirty (30) calendar days of

the date that it receives this decision .

A copy of the agency's letter of acknowledgment to complainant 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 (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 as 29 C.F.R. �1614.409).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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.

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:

December 3, 1999

_______________ ___________________________________

DATE Frances M. Hart

Executive Officer

Executive Secretariat

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:

_________________________

__________________________1 Because the record does not reveal when

complainant received the prior decision, we have treated her request

as timely.

2 On 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.