01984997
08-04-2000
Terrence R. Haugse, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Terrence R. Haugse v. United States Postal Service
01984997
August 4, 2000
Terrence R. Haugse, )
Complainant, )
)
v. ) Appeal No. 01984997
) Agency No. 4-I-680-0071-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, the arguments on appeal, including
those not expressly addressed herein, and for the reasons set forth
below, the Commission finds that the agency, in its May 12, 1998
final decision (FAD), improperly dismissed complainant's April 13,
1998 formal EEO complaint for untimely EEO Counselor contact.<1> See 64
Fed. Reg. 37,656 (1999) (hereinafter referred to and to be codified as
29 C.F.R. �1614.107(a)(2)).
The Commission finds the agency has failed to meet its burden of providing
sufficient evidence for a timeliness determination in connection with
complainant's claim that he had been subjected to harassment and
a hostile work environment based on sex (male)<2> dating to 1991.
The Commission has held 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." Guy,
Jr. v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). Moreover, where, as here, a complainant alleges
a pattern and practice of discrimination against him, an agency is
obligated to initiate an inquiry into whether any claims untimely raised
fall within the ambit of the continuing violation theory. Id.
The Commission has determined that the normal time limit for contacting an
EEO Counselor may be suspended if a continuing violation is demonstrated.
Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). A continuing violation has been defined as a series of
related acts, one or more of which falls within the limitations period.
Valentino v. U.S. Postal Service, 674 F.2d 56 (D.C. Cir. 1982); Clark
v. Olincraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied,
434 U.S. 1069 (1978). To establish a continuing violation, one must
show a "long-lasting pattern of like events" similar to a policy of
discrimination (albeit directed against a single individual). Shehedah
v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d 711, 725
(D.C. Cir. 1978) (defendant repeatedly provided negative references on
former employee).
The Commission also finds, in the present case, that the agency has
not properly defined the complaint at issue, when the FAD stated:
�[Complainant] alleged discrimination on the basis of sex (male), when
on August 8, 1991, harassment resulted in a hostile work environment.�
We find that the complaint is vague and contains numerous alleged
facts encompassing the years 1991 to 1998, when complainant initially
contacted an EEO Counselor on March 26, 1998. Complainant appears to
be claiming, for example, that he was subjected to same-sex harassment
of both a sexual and non-sexual nature at several agency facilities.
In addition, however, complainant also appears to be claiming that, over
the years, he was subjected to �forcible moving of [his] workplace� from
one agency facility to another;<3> was denied a bid and a transfer; and
sustained a job-related back injury for which he was denied reasonable
accommodation.<4> The Commission cannot distinguish between live claims
therein from background information intended to support claims. In a
similar situation, the Commission remanded the complaint back to the
agency so that complainant could meet again with an EEO Counselor in
order that an agreement could be reached on the issues in complainant's
complaint. Smith v. United States Postal Service, EEOC Request
No. 05921017 (Apr. 15, 1993).
In addition, although the FAD dismissed the complaint in the present case
because complainant's EEO contact was beyond the applicable time period
of 45 days under the Commission's regulations,<5> we find the complainant
has averred in his complaint that he had wanted to add his present claim
to a claim of disability-based harassment<6> he had purportedly filed in
September of 1997, but was allegedly discouraged from doing so by a named
EEO Counselor/Investigator (�C/I�) with whom he had spoken on March 27,
1998. Complainant further asserted that he had reported the allegedly
hostility to C/I on September 24, 1997, but did not seek to raise that
claim as an issue because he had previously been informed that such a
claim, i.e., �same-sex sexual harassment nor the hostility arising from
it is actionable under Title VII.� Additionally, complainant claimed
in his complaint, in relevant part, that he had reported the alleged
harassment and hostile work environment �repeatedly� over a period of
six years to agency supervisors, the union, and the Commission itself,
but was purportedly told that he could not be helped because he �was
not personally in a specially protected group.� In this regard, we find
the agency, in failing to address complainant's assertions, has not
met its burden of providing sufficient evidence in support of the FAD.
Henry v. United States Postal Service, EEOC Request No. 05940897 (May 10,
1995).
The Commission further notes complainant's contention, in his timely
appeal of June 9, 1998, that agency EEO posters in 1991, did not provide
sufficient information about the EEO process, in particular the process
for initiating EEO counseling. Complainant also argues that those posters
�appeared to me to specifically exclude me from seeking help from them.�
Complaint again avers that he unsuccessfully sought assistance from
others, including the Commission, in 1991, and in 1997. The Commission
finds that, although the agency recognized its obligation to provide
independent evidence of EEO posting to demonstrate that a complainant
was on constructive notice as to his/her EEO time requirements, the
agency failed to provide such evidence. Kovarik v Department of
Defense (Army and Air Force Exchange Service), EEOC Request No. 05930898
(December 9, 1993).
For the foregoing reasons, the FAD is hereby VACATED, and complainant's
complaint is hereby REMANDED for further processing consistent with
the Commission's decision and applicable regulations. The parties
are advised that this decision is not a decision on the merits of
complainant's complaint. The agency shall comply with the Commission's
ORDER set forth below.
ORDER
The agency is hereby ORDERED to take the following actions, including
a supplemental investigation:
1. The agency shall refer complainant to an EEO Counselor for the purpose
of clarifying the issues and bases in his April 13, 1998 complaint.
Complainant shall not be permitted to add new claims to his April 13,
1998 complaint. However, he shall not be required to refile his April
13, 1998 complaint at the conclusion of the counseling.
2. Complainant shall advise the Counselor of those claims intended
to be �live� claims from those claims intended to be presented
as background evidence in support of �live� claims. In addition,
complainant shall identify with specificity all bases of discrimination,
�live� claims of discrimination, dates of occurrence for each �live�
claim of discrimination, the specific identities of those individuals
whom complainant alleges discriminated against him with regard to each
�live� claim of discrimination, and the specific places where each
�live� claim of discrimination allegedly arose. The parties shall
ensure that all abbreviations are spelled out and all agency terms of
art are fully explained.
3. Thereafter, the Counselor shall issue a supplemental report of
Counseling that the agency shall include as part of its supplemental
report of investigation.
4. As part of its supplemental report of investigation, the agency
shall obtain from complainant, under oath or affirmation, a statement
identifying with specificity the identities of all persons whom
complainant purportedly contacted with regard to his claims at issue,
including those persons at the agency and those at the Commission with
whom complainant allegedly spoke and who, purportedly, rejected his
requests for assistance. Complainant shall provide relevant, specific
dates of such alleged contacts and the substance of those contacts.
The agency shall then obtain statements, under oath or affirmation,
from each individual at the agency with whom complainant asserts he
spoke or contacted in writing to obtain assistance with those claims
that formed the basis of his April 13, 1998 EEO complaint, including
C/I, to whom complainant allegedly reported hostility, on September 24,
1997. Complainant shall cooperate fully with all agency requests for
information and documents necessary to enable the agency to comply with
the Commission's Order in this matter. In this regard, both the agency
and complainant shall obtain and provide the Commission with all relevant
documents in this matter, including but not limited to complainant's
prior complaint of disability-based harassment that he claimed he filed
in September 1997.
5. The agency shall obtain and make available to the Commission, as well
as to complainant, true copies of any and all relevant EEO posters that
were posted between 1991, and complainant's March 26, 1998 EEO Counselor
contact in this case. The agency shall identify each poster by date
and identify where the poster was posted relative to those locations
where complaint was reasonably expected to frequent, including but
not limited to his work areas, break rooms, and the like. The agency
shall supplement those posters with statements taken under oath or
affirmation, from all persons, including complainant, with first-hand
knowledge as to the locations, dates, and substance of those posters of
which the agency contends complainant had constructive notice, as well
as from those persons who can provide evidence as to whether and when
complainant became aware of the applicable time limitation for initiating
EEO counseling in this case.
6. Upon completion of the investigation, the agency shall either:
(1) accept complainant's April 13, 1998 complaint for investigation;
or (2) again dismiss his complaint. If the parties agree on the issues
and bases in complainant's April 13, 1998 EEO complaint, and the agency
accepts his complaint for investigation, then the agency shall issue
a letter of acceptance to complainant, with a copy to the Commission.
If the parties cannot agree on the issues and bases in complainant's April
13, 1998 EEO complaint, and/or the agency again seeks to dismiss his
complaint, then the agency shall issue a final decision to complainant
with appeal rights to the Commission consistent with the Commission's
revised regulations. In this regard, the Commission reminds the parties
that there is no right of appeal to the Commission on partially-dismissed
claims until final action is taken on the remainder of the complaint,
The final decision must specify the legal grounds for dismissal, as well
as the facts and documentary evidence relied upon, and may not dismiss
claims de facto by failing to identify them.
7. All Ordered actions, including all supplementary reports and the
issuance of a letter of acceptance or final agency decision, as the
case may be, must be completed within ninety (90) calendar days from
the date the Commission's decision becomes final in the present case.
In accordance with EEOC--Management Directive (MD) 110 as revised
November 9, 1999, 9-23, the agency shall give priority to this remanded
case in order to comply with the time frames contained in this Order.
The Office of Federal Operations will issue sanctions against agencies
when it determines that agencies are not making reasonable efforts to
comply with a Commission order to investigate a complaint.
8. The agency must provide the complainant with a copy of the
supplemental EEO Counselor's report and supplemental report of
investigation, in addition to the letter of acceptance and/or final
agency decision as the case may be, and return the completed record 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 and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
August 4, 2000
DATE Carlton M. Hadden, Director
Office of Federal Operations
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:
_____________________ __________________________
Date Equal Employment Assistant
FOR OF INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HAD, ACTING DIR.
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER: 01984997
AGENCY NUMBER: 4-I-680-0071-98
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES Arnold Rubin
INITIAL AR1
DATE REVIEWED January 10, 2000
(ATTORNEY): Joel Cavicchia
(SUPERVISOR: Acting)
(DIVISION DIRECTOR): Melissa Miller
1.) (COMPLAINANT(S) Terrence R. Haugse
2.) (AGENCY) USPS
3.) (DECISION) FAD vacated
4.) (STATUTE(S) Title VII
5.) (BASIS(ES) GM
6.) (ISSUE(S) H1
7.) (TYPIST/DATE/DISK) AR1/January 10, 2000/36
SPELL CHECK: YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OF AFFIRMED FAD
X? 3M - OF REVERSED AND REMANDED
? 4J - OF MODIFIED FAD
X? 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
? 3R - RETURN TO AG FOR CONSOLIDATION
? 3S - RETURN TO AJ FOR CONSOLIDATION
[REVISED AS OF 11/03/99]
1On 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.
2See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.
3Complainant appears to have alleged, in pertinent part, that he had not
returned to work since July 7, 1997, when the agency moved his �letter
case� and �forcibly removed� his route from a facility satellite where
he had been working.
4See 29 C.F.R. Part 1630.
5See 64 Fed. Reg. 37,656 (1999) (referred to and hereinafter codified
as 29 C.F.R. �1614.105(a)(1)).
6See the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.