01973955_r
01-12-1999
Robert L. Cassidy, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert L. Cassidy, )
Appellant, )
)
v. ) Appeal No. 01973955
) Agency No. 4D-250-1147-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The final decision was issued on April 8, 1997.
The appeal was postmarked April 16, 1997. Accordingly, the appeal is
timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.
On September 10, 1996, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On October 30, 1996, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis
of reprisal. Specifically, appellant alleged that since 1994, the
agency Postmaster has sent him home before all the mail was posted to
the post office boxes, allowing a Transitional Employee to receive the
same hours that appellant works, that this action has cost appellant
approximately eight hours of work per week, and that as a consequence,
appellant has been forced to obtain work hours at other post offices.
On April 8, 1997, the agency issued a final decision. Therein, the agency
accepted for investigation the incidents that occurred within forty-five
days of appellant's initial EEO Counselor contact on September 10, 1996.
The agency identified the accepted allegation as involving the actions
commencing July 27, 1996 and ongoing, when the Postmaster sent appellant
home before all mail was posted. However, the agency dismissed the
incidents that occurred more than forty-five days before appellant's
initial EEO Counselor contact, i.e., the incidents when appellant was
sent home in 1994, 1995, and prior to July 27, 1996.
The agency determined that appellant untimely initiated EEO Counselor
contact regarding this allegation; and that it was not part of a
continuing violation. Specifically, the agency determined that the
matters raised in the dismissed allegation were of such permanence that
they should have prompted him to pursue the EEO complaint process when
they occurred. The agency noted, moreover, that appellant previously
pursued the EEO complaint process and should have been aware of the
forty-five-day limitation period.
The record in this case contains an EEO Request for Counseling form.
Therein, appellant stated that prior to 1994, he was sent home �at times�
but that it was not yet �the general rule.� Appellant further stated
that beginning in early 1994, he was consistently sent home.
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 Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Upon review of appellant's formal complaint, it is clear that appellant
viewed all the incidents when he was sent home as part of a continuing
violation. The Commission has held 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 or discriminatory acts, or the maintenance
of a discriminatory system or policy before and during the filing
period. See McGiven v. USPS, EEOC Request No. 05901150 (December 28,
1990). If one or more of the acts falls within the forty-five-day period
for contacting an EEO Counselor, the complaint is timely with regard to
all that constitute a continuing violation. See Valentino v. USPS, 674
F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC
Request No. 05900700 (September 21, 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, 715 F.2d 971, 981 (5th Cir. 1983). It is necessary
to determine whether the acts are related by a common nexus or theme.
See Milton v. Weinberger, 645 F.2d 1070 (D.C. Cir. 1981).
In the case at hand, appellant's allegation regarding being improperly
sent home from 1994 to July 26, 1996, involves a number of potentially
interrelated incidents of discrimination orchestrated by agency
officials. However, in applying the continuing violation theory, one
consideration is whether a complainant had prior knowledge or suspicion of
discrimination and the effect of this knowledge. See Sabree v. United
Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). The Commission described Sabree 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 he is being
discriminated against until 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).
Here, we find that the alleged discriminatory actions from 1994 through
July 26, 1996, were discrete acts which prompted appellant to have a
reasonable suspicion of discrimination at the time that they occurred.
We note, for example, that in an EEO Request for Counseling form,
appellant stated that he was improperly sent home intermittently prior to
1994, but that such incidents commenced to occur with consistency early
in 1994. Appellant failed to present adequate justification pursuant
to 29 C.F.R. �1614.105(a)(2), for extending the limitation period beyond
forty-five days. Accordingly, the agency's decision to dismiss the
incidents regarding being sent home from work from 1994 through July 26,
1996, for failure to initiate contact with an EEO Counselor in a timely
fashion was proper and is AFFIRMED.
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 (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:
Jan. 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations