01982237
04-16-1999
Ruth E. Royal, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ruth E. Royal v. United States Postal Service
01982237
April 16, 1999
Ruth E. Royal, )
Appellant, )
)
v. ) Appeal No. 01982237
) Agency No. 1-D-251-0009-97
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 her 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. Appellant's attorney received the final agency
decision on January 12, 1998. The appeal was postmarked January 27, 1998.
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.
ISSUES PRESENTED
The first issue presented is whether the agency properly dismissed
allegation 1 of appellant's complaint on the grounds that she failed to
contact an EEO Counselor in a timely manner.
The second issue presented is whether the agency properly dismissed
allegations 2-4 of appellant's complaint on the grounds of failure to
state a claim.
The third issue presented is whether the agency properly dismissed
allegation 8 of appellant's complaint on the grounds that it was not
brought to the attention of an EEO Counselor and is not like or related
to a matter that has been brought to the attention of an EEO Counselor.
BACKGROUND
Appellant initiated contact with an EEO Counselor on October 24, 1996.
On December 3, 1997, appellant filed a formal EEO complaint wherein she
alleged that she had been discriminated against on the bases of her sex
(female) and in reprisal for her previous EEO activity when:
1. From July 3, 1995 to April 15, 1996, she was placed on enforced
leave.
2. A contract nurse did not release her medical reports to the Veterans
Hospital as requested on December 12, 1995.
3. On September 10, 1996, appellant was required to submit to a second
urinalysis test.
4. On September 19, 1996, a contract physician told her that she was
not a paranoid schizophrenic, and then asked her if she knew what a
"marked employee" was, and then he told her that she was marked.
5. On October 7, 1996, she was improperly notified of her abolished
position, which was abolished on October 12, 1996, and she became an
unassigned regular in automation.
6. On October 7, 1996, she was required to work on the workroom floor
while dressed in a suit and shoes with heels.
7. On October 7, 1996, she was informed that she better bid on a posted
vacancy or she would be assigned to one, thus forcing her to bid on a
tour 3 position with hours of 5:00 p.m. to 1:30 a.m.
8. On February 12, 1997, she resigned due to major depression caused
by harassment.
Appellant characterized the agency's treatment of her as harassment.
In its final decision, the agency dismissed allegation 1 on the grounds
that appellant failed to contact an EEO Counselor in a timely manner.
The agency determined that appellant's initial contact of an EEO
Counselor on October 24, 1996, was approximately 223 days after the
alleged discriminatory action occurred on March 15, 1996. The agency
dismissed allegations 2-4 on the grounds of failure to state a claim.
The agency determined that appellant failed to establish that she
suffered a personal loss or harm with respect to a term, condition, or
privilege of her employment. With regard to allegation 2, the agency
stated that the contract nurse sent appellant's medical records to the
VA hospital in January 1996. As for allegation 3, the agency determined
that the physician stated that the second urinalysis test was part of the
fitness-for-duty examination appellant was undergoing. With respect to
allegation 4, the agency noted that a remark or comment unaccompanied
by any concrete effect does not constitute a direct and personal
deprivation so as to render an individual aggrieved. Allegation 8 was
dismissed on the grounds that appellant did not raise this matter with
an EEO Counselor, and there is no evidence that this issue is related
to the issues on which appellant sought and received EEO counseling.
Allegations 5-7 were accepted for investigation.
On appeal, appellant contends that she raised in a timely manner the
matter of her being placed on enforced leave. Appellant argues that she
was denied access to her medical records in order to keep her off work
and thus abolish her position. Appellant also claims that the urinalysis
test was given to her pursuant to the agency's plan to terminate her.
With regard to allegation 8, appellant maintains that her resignation
is like or related to her general allegation of harassment.
In response, the agency asserts that appellant has proffered several
allegations that refer to her prior EEO activity, and are not issues in
the instant matter.
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).
With regard to allegation 1, we note that appellant did not initiate
contact with an EEO Counselor until October 24, 1996, after the expiration
of the 45-day limitation period. However, appellant claims that she
was subjected to a continuing pattern of harassment. We note that the
agency failed to address the issue of a continuing violation in its final
decision. 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 allegation 1 of appellant's complaint on the grounds of untimely
EEO contact is VACATED. Allegation 1 is hereby REMANDED to the agency
for a determination regarding whether a continuing violation has been
established.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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 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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, appellant alleges that she was subjected to
harassment when she was placed on enforced leave; her medical records
were not released as requested; she was required to undergo a second
urinalysis test; she was told that she is not a paranoid schizophrenic
and that she is a "marked employee"; she was improperly notified of her
abolished position and she became an unassigned regular in automation;
she was required to work on the workroom floor while dressed in a suit
and shoes with heels; she was informed that she better bid on a posted
vacancy or she would be assigned to one; and she resigned due to major
depression caused by harassment. Viewing the identified remarks and
comments in the light most favorable to appellant, we find that appellant
has stated a cognizable claim under the EEOC Regulations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November
12, 1993). Accordingly, the agency's decision to dismiss allegations
2-4 of appellant's complaint for failure to state a claim was improper.
Allegations 2-4 are hereby REMANDED for further processing in accordance
with the ORDER below.
EEOC Regulation 29 C.F.R. �1614,107(b) states that the agency shall
dismiss a complaint or a portion of a complaint that raised a matte that
has not been brought to the attention of an EEO Counselor and is not
like or related to a matter that has been brought to the attention of
an EEO Counselor. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
Upon review of the record, we note that in allegation 8 appellant is
alleging that she was constructively discharged, i.e., that she was forced
to resign as a result of the harassment. Clearly, her allegation could
have reasonably been expected to grow out of the original complaint.
Accordingly, the agency's decision to dismiss allegation 8 was improper
and is REVERSED. Allegation 8 is hereby REMANDED for further processing
in accordance with the ORDER below.
CONCLUSION
The agency's decision to dismiss allegation 1 on the grounds of
untimely EEO contact is VACATED and allegation 1 is REMANDED for further
processing. The agency's decision to dismiss allegations 2-4 and 8 is
REVERSED and allegations 2-4 and 8 are REMANDED for further processing.
ORDER
The agency is ORDERED to take the following actions:
The agency shall conduct a supplemental investigation into whether
appellant has established a continuing violation with regard to
allegation 1. Thereafter, the agency shall decide whether to process
or dismiss allegation 1 of appellant's complaint. 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.
The agency is ORDERED to process allegations 2-4 and 8 in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 (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:
April 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations