Thomas W. Machaterre, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01980643 (E.E.O.C. Jul. 12, 2000)

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.