01990390
11-08-1999
Wanda Medina-D'Amato, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wanda Medina-D'Amato v. United States Postal Service
01990390
November 8, 1999
Wanda Medina-D'Amato, )
Appellant, )
)
v. ) Appeal No. 01990390
) Agency No. 4-G-730-0015-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 25, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
Following a remand by the Commission<1>, the agency issued a new final
agency decision wherein it identified 14 allegations in addition to a
previously accepted allegation, allegation 1. The decision found that the
appellant had not contacted an EEO counselor regarding the 14 allegations
within 45 calendar days of the allegedly discriminatory incidents.
The appellant acknowledged she was aware of the time limitation for
EEO counselor contact. However, she believed her allegations should be
investigated because they were part of a continuing violation; that is,
discrimination based on her sex and national origin. The decision found
that allegations 2 through 15 did not satisfy the requirements for a
continuing violation because the incidents were separate completed acts
that were not interrelated or continuous in nature with the timely raised
allegation 1.
The Commission has held that the normal time limit for contacting
an EEO counselor may be suspended when a complainant alleges facts
sufficient to constitute a continuing violation, i.e., the existence of
a discriminatory system or policy, or a series of related discriminatory
acts, both before and during the filing period. Rohrer v. Department of
Health and Human Services, EEOC Request No. 05940965 (April 12, 1995);
and Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989). If one or more of the interrelated acts falls within
the time period for contacting an EEO counselor, the complaint is deemed
timely with regard to all acts. Verkennes v. Department of Defense,
EEOC Request No. 05900700 (September 21, 1990). Whether a series
of discrete acts constitutes a continuing violation claim depends on
the interrelatedness of the past and present acts. Relevant to this
determination are whether the discrete acts were similar in nature;
whether the acts were recurring (e.g., a regular paycheck) 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; whether the same agency
officials were involved; and so forth. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995). Also relevant to the
inquiry is whether the complainant had prior knowledge or suspicion of
the discrimination. Rohrer v. Department of Health and Human Services,
EEOC Request No. 05940965 (April 12, 1995); and Crowbridge v. United
States Postal Service, EEOC Request No. 05921030 October 14, 1994).
The Commission finds that the timely raised allegation concerned the
appellant's non-selection for an Operations Support Specialist position
on October 15, 1996. Among the dismissed allegations were allegations of
discriminatory non-selection for several other positions: an Express
Mail Technician position in February 1996, a Schemes and Schedules
Clerk position in January 1996, a Clerk Steno position in June 1993,
and a Hispanic Program position in July 1992. Given the difference
in the positions, the selecting officials, and the rating panels,
the Commission finds that the appellant's complaint does not raise
a continuing violation claim as to the identified non-promotions.
Similarly, the appellant has not shown how her allegations regarding
her placement on the Maintenance Support Clerk Register are related to
her non-selection for the Operations Support Specialist position.
Other dismissed allegations concerned the denial of detail assignments,
including the denial of a 204-B assignment from March 1994-October 1994,
the denial of an opportunity in the detail bank from November 1994 to
March 1996, and a denial of a detail to Labor Relations on July 3, 1996.
While in some situations, the denial of detail assignment may be linked
to a non-selection, the Commission finds that in the instant case the
appellant has not shown that any of the identified denials of detail
assignments were sufficiently interrelated with the timely-raised
non-selection to constitute a continuing violation.
Finally, the Commission finds that the remaining allegations were even
further removed from the timely raised non-selection allegation, for
example, the denial of advance sick leave for pregnancy and confinement
in August 1993.
In sum, the Commission finds that the appellant's untimely raised
allegations should not be deemed to have been timely raised under a
continuing violation theory.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 2 through 15 from the appellant's December 26,
1996 complaint.
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 (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
11/08/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Medina-D'Amato v. USPS, EEOC Appeal No. 01973625 (July 8, 1998).