01980643
07-12-2000
Thomas W. Machaterre, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas W. Machaterre v. United States Postal Service
01980643
July 12, 2000
Thomas W. Machaterre, )
Complainant, )
)
v. ) Appeal No. 01980643
) Agency No. 4-H-335-0275-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant 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.<1> Complainant received the final agency
decision on October 20, 1997. The appeal was postmarked October 25,
1997. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. �1614.405).
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of untimely EEO contact.
BACKGROUND
According to the EEO Counselor's report, complainant initiated contact
with an EEO Counselor on August 8, 1997. In his informal complaint,
there is a reference to complainant requesting an appointment with an
EEO Counselor on July 29, 1997. In the informal complaint, complainant
raised the following incidents of alleged discrimination:
1. In October 1996, his off days were changed from Monday to Saturday
for no apparent reason.
2. In April 1997, complainant filed a grievance so that there would be
a temporary substitute for his route.
3. In May 1997, complainant was informed that all future doctor
appointments would have to be substantiated.
4. In May 1997, complainant was charged with being absent without leave
(AWOL).
5. On June 11, 1997, complainant was issued a notice of proposed
removal.
6. On July 23, 1997, complainant filed a grievance because there has
not been relief assigned to his route for six months.
On September 4, 1997, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discriminatory harassment on the basis
of his religion (Atheist). The complaint indicated that the claims at
issue were raised in his letter dated July 29, 1997.
In its final decision, the agency dismissed the complaint on the grounds
that complainant failed to contact an EEO Counselor in a timely manner.
The agency stated that the relevant issues occurred during the period
of October 1996 - June 11, 1997. The agency determined that complainant
initiated contact with an EEO Counselor on August, 8, 1997, which was more
than 45 days after the most recent incident. According to the agency,
the record lacks a credible explanation that would justify the untimely
EEO contact. The agency did not address the matters listed above as
claims 2 and 6.
On appeal, complainant maintains that there are six matters in his
complaint rather than the four issues set forth in the final agency
decision. Complainant clarifies claims 2 and 6 indicating that he is
disputing the lack of relief personnel for his route. Complainant notes
that the most recent incident is listed as July 23, 1997, and not June
11, 1997, and this issue was therefore raised in a timely manner.
Complainant claims that his initial contact with the EEO Office was
through a letter and packet of information that was received by the
agency on July 30, 1997. Complainant notes that his notice of proposed
removal was reduced to a 14-day suspension.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond 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 claims 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 Reid v. Department of Commerce,
EEOC Request No. 05970705 (April 22, 1999); McGivern v. United States
Postal Service, EEOC Request No. 05901150 (December 28, 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 of Louisiana State Univ.,
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, complainant 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 complainant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
With regard to the matters referenced in the informal complaint as
claims 2 and 6, we note that these issues were not addressed by the
agency in its final decision. It appears that these claims pertain to
a lack of relief personnel for complainant's route. We find that these
matters must be addressed by the agency, and therefore claims 2 and 6
are REMANDED for further processing pursuant to the ORDER below.
We find that the issue of a continuing violation also needs to
be addressed. The incident set forth in claim 6 occurred on July
23, 1997, therefore this claim was brought to the attention of an
EEO Counselor in a timely manner. 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 claims 1, 3, 4, and 5 of the complaint
on the grounds of untimely EEO contact is VACATED. The complaint is
hereby REMANDED to the agency for a determination regarding whether a
continuing violation has been established when all complainant's claims
are viewed together.
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
complainant has established a continuing violation when considering all
six of complainant's claims.
Thereafter, the agency shall decide whether to process or dismiss the
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.
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:
July 12, 2000 _______________________________
DATE Carlton M. Hadden, Acting 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,
and the agency on:
DATE
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.