Ronald McCray, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01992296_r (E.E.O.C. Nov. 4, 1999)

01992296_r

11-04-1999

Ronald McCray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ronald McCray, )

Appellant, )

)

v. ) Appeal No. 01992296

) Agency No. 1-C-151-0110-98

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 agency decision was issued on December

24, 1998. The appeal was postmarked January 25, 1999. 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.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of the first allegation of appellant's complaint on the grounds that

appellant failed to contact an EEO Counselor in a timely manner.

BACKGROUND

Appellant initiated contact with an EEO Counselor on May 27, 1998.

On August 21, 1998, appellant filed a formal EEO complaint wherein he

alleged that he had been discriminated against on the bases of his race

(black) and in reprisal for his previous EEO activity when:

1. Since approximately 1994, appellant has been subjected to a hostile

work environment in the form of being looked down upon and subjected to

jokes by coworkers.

2. On May 21, 1998, appellant received a Notice of Suspension of 14

days or less.

In its final decision, the agency dismissed the portion of allegation

1 that covers the period of 1994 through April 12, 1998, on the grounds

of failure to contact an EEO Counselor in a timely manner. The agency

determined with regard to this portion of allegation 1 that appellant's

EEO contact on May 28, 1998, was after the expiration of the 45-day

limitation period. The agency further determined that appellant failed

to provide evidence to justify extending the time limits. Allegation 2

and the portion of allegation 1 alleging discrimination since April 13,

1998 were accepted for investigation.

On appeal, appellant indicates that his complaint sets forth a continuing

violation. Appellant argues that agency management has continuously

discriminated and retaliated against him since May 1993.

ANALYSIS AND FINDINGS

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 45 days of the effective date of the action.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the

Commission shall extend the 45-day time limit when the individual shows

that he or she was not notified of the time limits and was not otherwise

aware of them, that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred, that

despite due diligence he or she was prevented by circumstances beyond his

or her control from contacting the counselor within the time limits, or

for other reasons considered sufficient by the agency or the Commission.

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 McGovern v. U.S. Postal Service,

EEOC Request No. 05901150 (December 28, 1990); Starr v. U.S. 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).

In the present case, appellant alleges in allegation 1 that he was

subjected to a hostile work environment. The incident accepted

for investigation in allegation 2 concerns the issuance of a Notice

of Suspension to appellant in May 1998. The incidents set forth in

appellant's complaint allegedly occurred in the period of 1994 through

July 1998. Appellant initiated contact with an EEO Counselor on May 27,

1998.<2> Allegation 2 and the portion of allegation 1 that involves

incidents that allegedly occurred since April 13, 1998, were accepted

for investigation. We find that the issue of a continuing violation

needs to be addressed. It is well-settled that where, as here, there

is an issue of timeliness, "[a]n agency always bears the burden of

obtaining sufficient information to support a reasoned determination

as to timeliness." Williams v. Department of Defense, EEOC Request

No. 05920506 (August 25, 1992). Moreover, where, as here, a complainant

alleges "recurring incidents" of discrimination, "an agency is obligated

to initiate an inquiry into whether any allegations untimely raised fall

within the ambit of the continuing violation theory." Guy v. Department of

Energy, EEOC Request No. 05930703 (December 16, 1993) (citing Williams).

As the Commission further held in Williams, where an agency's final

decision fails to address the issue of continuing violation, the complaint

"must be remanded for consideration of this question and issuance of a new

final agency decision making a specific determination under the continuing

violation theory." Accordingly, the agency's decision to dismiss the

aforementioned portion of allegation 1 of appellant's complaint on the

grounds of untimely EEO contact is VACATED. This portion of allegation

1 is hereby REMANDED to the agency for a determination regarding whether

a continuing violation has been established.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

The agency shall conduct a supplemental investigation into whether

appellant has established a continuing violation.

Thereafter, the agency shall decide whether to process or dismiss the

portion of allegation 1 of appellant's complaint involving incidents

that allegedly occurred during the period of 1994 through April 12, 1998.

29 C.F.R. �1614.106 et seq. The supplemental investigation and issuance

of the notice of processing and/or final decision must be completed

within thirty (30) calendar days of the date this decision becomes final.

A copy of the final decision and/or notice of processing must be submitted

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 (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:

November 4, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1The record does not establish when

appellant received the final agency decision. Absent evidence to

the contrary, we find that the instant appeal was timely filed.

2 In its final decision, the agency stated that appellant initiated

contact with an EEO Counselor on May 28, 1998; however, in the EEO

Counselor's report, appellant's initial contact date is recorded as May

27, 1998.