01993849
09-09-1999
Veda C. Chase, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Veda C. Chase v. United States Postal Service
01993849
September 9, 1999
Veda C. Chase, )
Appellant, )
)
v. ) Appeal No. 01993849
) Agency No. 4K-200-0227-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 8, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on March 12, 1999,
pertaining to 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. In her complaint, appellant alleged that she
was subjected to discrimination in reprisal for prior EEO activity when:
On September 30, 1997, appellant received an unofficial discussion;
On October 4, 1997, appellant was harassed by management about the way
she carried the mail and her route was motorized on the days she walked
the route;
On October 4, 1997, she received a 7-day suspension for Failure to
Deliver Mail As Instructed;
On December 29, 1997, appellant was issued a Letter of Warning for
Failure to be Regular in Attendance;
On April 29, 1998, appellant became aware of contradictory and erroneous
reports about how she performed her duties;
On April 29, 1998, appellant was sent to another station; and
On June 3, 1998, appellant was forced to submit to an unjustifiable
Fitness For Duty Examination.
Appellant further alleged that the foregoing constituted harassment
which created a hostile work environment.
The agency accepted allegations (6) and (7) for investigation,
dismissed allegations (1) through (4) pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner, and dismissed allegation (5) pursuant
to 29 C.F.R. �1614.107(a), for failure to state a claim. With regard
to allegations (1) through (4), the agency determined that because
appellant's June 2, 1998 initial EEO Counselor contact occurred more
than forty-five (45) days from the date on which the actions took place,
it was untimely. Also, the agency determined that appellant was not
aggrieved by the incident identified in allegation (5) because she
suffered no harm to the terms, conditions or privileges of her employment
as a result of the incident.
The Commission notes that on her Information for Precomplaint Counseling
form, appellant alleged that the incidents to which she was subjected
constituted a "constant barage (sic) of harassment and disciplinary
action."
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 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.
However, 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 Reid v. Department
of Commerce, EEOC Request No. 05970705 (April 22, 1999); McGivern
v. U.S. 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, 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).
Relevant to the determination 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).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997).
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 harassment, "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, here, where appellant alleged that
the incidents identified in her complaint were continuing in nature,
the agency must determine on remand whether allegations (1) through (4)
comprise part of a continuing violation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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).
With regard to allegation (5), we concur with the agency's determination
that, standing alone, it fails to state a claim. However, appellant
alleged that allegation (5) was another incident of alleged harassment
to which she was subjected by agency management. 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).
When allegation (5) is viewed in conjunction with appellant's other
allegations, both those accepted and those being remanded for a
determination of the existence of a continuing violation, allegation (5)
states a claim of harassment. Consequently, we find that dismissal of
allegation (5) pursuant to 29 C.F.R. �1614.107(a) was improper.
Accordingly, the agency's decision to dismiss allegations (1) through
(5) is hereby REVERSED. Allegations (1) through (5) are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall undertake a supplemental investigation to determine if
allegations (1) through (4) constitute part of a continuing violation.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a notice of processing and/or a new FAD regarding
allegations (1) through (4).
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify appellant that allegation (5) has been accepted
for further processing along with the other accepted allegations from
appellant's October 21, 1998 complaint.
A copy of the agency's notice of processing and/or new FAD regarding
allegations (1)-(4), and a copy of the notice of processing regarding
allegation (5) 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:
Sept. 9, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations