01983028
08-20-1999
Bruce C. Webster, Appellant, V. William J. Henderson, Postmaster General, United States Postal Service, Agency, ______________________________)
Bruce C. Webster v. United States Postal Service
01983028
August 20, 1999
Bruce C. Webster, )
Appellant, )
)
V. ) Appeal No. 01983028
) Agency No. 4-A-100-0145-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
______________________________)
DECISION
INTRODUCTION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission) from the final decision of the agency concerning
his allegation that the agency violated Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e, et seq. The appeal
is accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed portions
of appellant's complaint for untimely contact with an EEO counselor and
failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO counselor on May 15, 1997, and
filed a formal complaint on November 12, 1997, alleging discrimination
based on reprisal (prior EEO activity) when,
on October 10, 1996, he was forced to work outside his bid assignment;
on October 10, 1996, he was refused medical attention;
on October 24, 1996, he was issued a Letter of Warning;
in October, 1996, he was placed in pay location 613 under Supervisor I;
on an unspecified date, he was returned to pay location 614 without
notice;
on February 11, 1997, his tour was changed from 6:00 a.m. to 9:30 a.m.;
on February 28, 1997, and March 11, 1997, his requests for a change of
schedule were denied;
on March 17, 1997, he was issued a Letter of Warning for failing to
follow instructions and starting his tour early without authorization;
on an unspecified date, overtime was given to individuals not on the
overtime desired list;
on June 12, 1997, he was issued a 7-day Suspension;
on July 8, 1997, his on-the-job injury claim with the Department of Labor,
Office of Workers' Compensation Programs was controverted;
on unspecified dates he was required to submit evidence of his need to
be absent from work;
on an unspecified date his job was abolished after he requested out of
schedule premium pay;
on an unspecified date, he was accused of destroying Postal Service
property, sabotage, and delaying the mail;
on October 16, 1997, his request for a day off was denied, he was marked
as absent without official leave (AWOL) even though he had proof of his
need for the absence, and his grievance on the AWOL was denied at Step
I of the grievance procedure;
on October 31, 1997, he was issued a 14-day suspension;
a verbal agreement between appellant, the EEO counselor, and the union
to close complaint number 1-A-101-1078-96 was breached;<1>
on March 25, 1997, he requested a pay location change;
his doctors' notes were questioned;
his pay stubs were deliberately withheld;
he was not given an original Form 3971 for EAL;
he marked containers of mail even when he was doing more than required
work; and
an employee was the successful bidder for an assignment but never
worked it.
The final agency decision (FAD), dated February 9, 1998, accepted
allegations 10, 12, 13, 15, and 16 for investigation. The agency
dismissed allegations 1 through 9 for untimely contact with an EEO
counselor, and allegations 11 and 14 for failure to state a claim.
On appeal, appellant argues that the agency failed to consider several
of his allegations in its final decision. Appellant re-lists all of
his allegations including those he claims were omitted.<2> These are:
1. Breach of a verbal agreement between appellant, the EEO office
and the union shop steward changing appellant's hours in exchange for
withdrawal of his EEO complaint;
2 Submission of a buck slip to the union shop steward and manager to
request a pay location change;
3. Excessive requests by the Supervisor for evidence to cover appellant's
absences
4. Appellant was marked AWOL after he submitted proof for EAL;
5. Appellant was refused a Step 1 grievance regarding the AWOL;
6. Appellant's pay stub was deliberately withheld;
7. Appellant was not given an original Form 3971 for EAL;
8. Appellant marked containers of mail even when he was doing more than
required work; and
9. An employee was the successful bidder for an assignment but never
worked it.
The agency argues that all of appellant's allegations were addressed
in the FAD and that allegations (17) through (23) are duplicates of
allegations listed as (1) through (16). The agency correlates each
of the allegations appellant claims were omitted with an allegation
addressed by the FAD.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that an agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106 and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c), or that raises a matter that has not been brought to
the attention of a counselor and is not like or related to a matter that
has been brought to the attention of a counselor.
The Commission finds that appellant states a claim of harassment. The
Commission further finds that the agency examined appellant's complaint
as isolated events rather than as an ongoing pattern of harassment.
When confronted with claims involving multiple allegations, the agency
should not ignore the "pattern aspect" of a complainant's claims and
define the issues in a piecemeal manner. See Meaney v., Department of
the Treasury, EEOC Request No. 05940169 (November 12, 1993).
The Commission has held that the time requirements for initiating EEO
counseling can be waived as to certain allegations within a complaint when
the complainant alleges a continuing violation. A continuing violation
has been defined as a series of related discriminatory acts, one of
which falls within the time period for contacting an EEO counselor.
McGiven v. United States Postal Service, EEOC Request No. 05901150
(December 28, 1990).
Because of the continuing nature of the allegations, the Commission
finds that the agency improperly dismissed allegations (1) through (8)
for untimeliness.
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, disabling condition or retaliation for prior
EEO activity. 29 C.F.R. �1614.103; �1614.106(a). The Commission's
federal sector case precedent has long defined as "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).
The Commission finds appellant fails to demonstrate an injury with
respect to allegations 9, 11 and 14, and therefore, fails to state a
claim. Thus, the Commission finds that allegations (9), (11) and (14)
are properly dismissed.
Upon review of the record, the Commission finds that appellant's
allegations (17), and (19) through (22) are in fact duplicates of
allegations listed in the complaint as numbers (1) through (16).
As duplicates, these allegations need not be addressed.
The Commission finds that allegation (18) and (23) do not appear to
correspond to any of the issues addressed in the FAD and thus may
not be duplicates. On remand, the agency shall request that appellant
clarify the specific date of each allegation and provide more information
identifying the act.
CONCLUSION
Accordingly, the decision of the agency to dismiss allegations 1 through
8 is REVERSED. The decision to dismiss allegations 9, 11, 14, 17, and
19 through 22 of the complaint is AFFIRMED. Allegations 18 and 23 are
REMANDED in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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
August 20, 1999
_________________________ ___________________________
DATE Carlton Haddon, Acting Director
1 The record indicated appellant's EEO complaint number 1-A-101-1078-96
was settled on November 7, 1996, and complaint number 4-A-000-1499-93 was
settled on June 22, 1993.
2 Appellant argues that the agency failed to consider ten allegations,
but lists only nine in addition to those addressed in the FAD.