01982526
04-27-1999
Stephanie Griffin, Appellant, v. William J. Henderson, Postmaster General, U.S. Postal Service, Agency
Stephanie Griffin v. U.S. Postal Service
01982526
April 27, 1999
Stephanie Griffin, )
Appellant, )
) Appeal No. 01982526
v. ) Agency No. 4A-000-0002-97
)
William J. Henderson, )
Postmaster General, )
U.S. Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was dated January
14, 1998, and received by appellant on January 20, 1998. The appeal
was received by the Commission on February 18, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely contact with an EEO Counselor.
BACKGROUND
Appellant filed a formal complaint of discrimination on August 27,
1997, alleging discrimination on the bases of race (black), color
(brown skinned), sex (female), and reprisal (prior EEO activity).
She alleged various acts of continuous and ongoing harassment concerning
her working conditions, beginning in 1994 and continuing through the date
of the filing of her complaint. Her formal complaint listed a number
of incidents, approximately 100, that occurred during this time period.
In its final agency decision, the agency dismissed the complaint in its
entirety for untimely EEO contact, and found that appellant had failed
to establish a continuing violation. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. 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 discriminatory
acts, one of which falls within the time period for contacting an EEO
Counselor. See McGivern v. USPS, EEOC Request No. 05901150 (December
28, 1990). If one or more of the acts fall within the 45-day period
for contacting an EEO Counselor, the complaint is timely with regard to
all that constitutes 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), 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). 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 the appellant.
Scott v. Claytor, 469 F.Supp. 22, 26 (D.D.C. 1978).
Apparently, the agency calculated the 45 day time limit using the date
of July 6, 1997, the last date of discrimination appellant listed in her
formal complaint, as compared to the date of appellant's first EEO contact
on December 9, 1996. When looking at the timeliness of an appellant's
EEO contact, the correct calculation of the 45 day period is arrived at
by looking at the date when appellant first contacted the EEO Counselor
and whether alleged discriminatory acts occurred in the 45 day period
preceding that. The record reveals that the appellant first contacted
an EEO Counselor about her allegations of discrimination on December
9, 1996, and that she filed her formal complaint on August 27, 1997.
In her formal complaint, she lists a number of dates of discrimination,
at least 11 of which are within the 45 day period preceding appellant's
first EEO contact. Appellant merely goes on to list in her complaint
acts of alleged discrimination that continued up through the time she
filed her formal complaint. Accordingly, appellant's complaint contains
incidents of harassment which were timely.
Regarding the incidents alleged by appellant that were outside of
the 45 day time period preceding appellant's EEO Counselor contact,
appellant has alleged that this is a continuing violation. Relevant to
the determination of a continuing violation are whether the acts were
recurring or were more in the nature of isolated employment decisions;
whether an untimely discrete act had the degree of permanence which
should have triggered an employee's awareness and duty to assert his
or her rights; and whether the same agency officials were involved.
Woljan v. Environmental Protection Agency, EEOC Request No. 05950361
(October 5, 1995). In the instant case, the nature of the acts alleged
is such that they were recurring instances of harassment, such as being
treated differently than other managers with respect to requirements
to attend meetings, paperwork procedures, and opportunities to attend
manager training sessions. Appellant alleges that the same agency
officials were involved in the repeated acts of discrimination.
The interrelatedness of the timely and untimely acts also must be assessed
in order to determine if a continuing violation has been alleged.
Appellant alleged a number of incidents that fell within the 45 day
period preceding her first EEO contact on December 9, 1996, including:
1) on November 4, 1996, she was accused of not acting accordingly when
Injury Compensation contacted her; 2) on November 7, 1996, she had
unnecessary paperwork added to her duties; 3) on November 21, 1996,
she was "temporarily reassigned" to a developmental assignment without
being told in what way she was deficient at her present job, and 4)
on December 2, 1996, she was demoted to a lower level assignment.
Incidents which appellant alleged which occurred prior to the 45 day
limitation period include: 1) on October 3, 1994, she was denied the
right to schedule her staff in the way she saw fit; 2) on May 10, 1995,
the operation under her management was subjected to a higher level of
scrutiny than other operations; 3) on July 20, 1995, she was told that
she could not utilize HQ Labor Relations Assistance in managing her
operation; 4) on November 1, 1995, she and the supervisors under her
direction were not afforded the opportunity to attend a safety training;
5) On December 23, 1995, she was told that she was to have a reporting
relationship different from all the other managers, and 6) on April 9
and April 24, 1996, she was harassed when given conflicting directives
regarding the management and staffing of her operation. The common nexus
or theme that can be discerned from these allegations and the others
contained in appellant's formal complaint is that appellant's ability
to properly manage her operation at the postal facility was interfered
with by certain management officials, which created a situation in which
appellant could not succeed at her job.
The Commission finds that the appellant has established a continuing
violation regarding her claim of continuous and ongoing harassment with
respect to the terms and conditions of her employment, and that the
agency improperly dismissed her complaint.<1>
Accordingly, for the reasons stated above, the decision of the agency
was improper and is REVERSED and REMANDED for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall investigate appellant's claim of harassment in which
she alleged that the agency has prevented her from properly managing
her operation at the postal facility.
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint 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 27, 1999
______________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission notes that the agency official issuing the final agency
decision is also one of the individuals named by appellant in her complaint
as an alleged discriminator. This apparent conflict of interest cannot be
continued. See EEOC Management Directive (MD) 110, (1-1).