01983550
11-10-1998
Dennis J. Campbell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis J. Campbell, )
Appellant, )
)
v. ) Appeal No. 01983550
) Agency No. 4C-175-1070-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was received by
appellant on March 30, 1998. The appeal was postmarked April 2, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed allegations
(1) through (6), (8) through (14), and (22) through (30) due to untimely
EEO Counselor contact; allegations (7), (15), (16), (17), (20), and (21)
for failure to state a claim; and allegations (18) and (19) for stating
the matters that appellant had already raised in an appeal to the Merit
Systems Protection Board (MSPB).
BACKGROUND
The record indicates that on May 15, 1996, appellant contacted an EEO
Counselor with regard to his complaint. Unable to resolve the matter
informally, appellant filed a formal complaint dated December 12, 1996,
which was later clarified. Therein, appellant alleged that he was
continuously harassed by the Postmaster and a number of agency officials
from 1986 through 1992.
The record indicates that on May 23, 1997, the agency previously issued
a final decision dismissing the complaint for failure to state a claim.
Appellant appealed, and the Commission, in EEOC Appeal No. 01975227
(November 20, 1997), found that the complaint stated a claim, and ordered
the agency to further process and clarify the complaint.
On March 23, 1998, the agency issued a final decision, wherein, the agency
framed appellant's allegations in the complaint, which were subsequently
clarified, as follows:
(1) In January 1986, he was told that if he did not resign, he would
be fired;
(2) In March 1986, he was rehired to the Lansdale, PA office and was
not given a Form 50 or any 30, 60, or 80 day evaluations;
(3) On March 26, 1986, he was falsely accused of being responsible for
a missing bag of money/checks that never arrived at the sectional center;
(4) In March 1986, Postal Inspectors informed employees in the Fort
Lauderdale Post Office that he had stolen the bag of money and checks;
(5) In March 1986, an identified Postal Inspector removed his DD214 from
his personnel file;
(6) On April 8, 1986, after discovering his fingerprints were not those
found on the recovered bag, his name was never cleared;
(7) On an unspecified date, his wife contacted an Employee and Labor
Relations Manager for help and his response was "No one will speak to you,
you are only his wife.";
(8) During May 1986, appellant was terminated due to "Unsatisfactory
Task Performance and Poor Attendance";
(9) He was never sent any papers allowing him to petition/appeal his
"wrongful discharge" termination;
(10) In August 1986, the agency submitted falsified documents to the
MSPB in order to have the case terminated;
(11) From March 1986 through October 1987, he believed that the derogatory
employment references given by the agency prevented him from obtaining
employment;
(12) From May 1986 to 1987, he was denied reinstatement to Ft. Lauderdale;
(13) During August 1987, an agency employee showed him a black file
containing letters with incorrect information, which were used to fire
him in May 1986;
(14) On September 30, 1987, appellant was told by a fellow employee
that the officer-in-charge in Lansdale asked him to sign a paper against
appellant;
(15) On an unspecified date, he was forced to drive his jeep and deliver
mail while taking a drug that prohibits driving a motor vehicle;
(16) On an unspecified date, he was accepted to another facility, however
the Postmaster's derogatory employment references prevented him from
getting the job;
(17) On an unspecified date, the Postmaster made the workplace so
intolerable for him that after three days of being unable to function,
appellant stopped returning to work;
(18) On an unspecified date, the Human Relations Department never told
him that he could collect any other type of compensation other than
disability medical retirement;
(19) On an unspecified date, he was terminated;
(20) He was told by his supervisor that if his wife would stop making
trouble, he would be promoted which would be his compensation;
(21) On an unspecified date, his paycheck was impounded and he was forced
back to work;
(22) From 1987 to 1988, after he applied for positions in California,
he was turned down after his personnel file was retrieved;
(23) In 1988, his candidacy for supervisor was turned down;
(24) In 1989, he was again turned down for a supervisory position;
(25) In May 1989, his wife was ill and could not attend to her baby and
the Postmaster would not let him go home;
(26) In June 1991, after submitting medical documentation, his supervisor
refused to give his wife his paycheck;
(27) In 1991, threatening phone calls were made to his physicians about
excusable notes;
(28) In August 1991, he was illegally forced back to work by the
withholding of his paycheck;
(29) In 1992, he was forced to leave the country;
(30) In 1992, the Postal Inspection Service gave negative information
to the FBI for the purpose of ongoing harassment; and
(31) On May 14, 1996, he became aware that the Postmaster had been making
derogatory statements to prospective employers about him when they called
requesting information on his previous employment status.
In its decision, the agency dismissed allegations (1) through (6), (8)
through (14), and (22) through (30) due to untimely EEO Counselor contact.
The agency stated that the alleged incidents occurred from 1986 through
1992, but appellant did not contact an EEO Counselor until May 15, 1996.
The agency dismissed allegations (7), (15), (16), (17), (20), and (21)
for failure to state a claim. The agency indicated that appellant
failed to provide any evidence that would suggest that he suffered a
personal loss or harm with respect to a term, condition, or privilege
of employment as a result of the cited management actions. The agency
dismissed allegations (18) and (19) for stating the same matters that
he had already raised in an appeal to the MSPB. The agency accepted
allegation (31) for investigation.
On appeal, appellant contends that his complaint is timely and states
a claim since it involves continuing harassment on the part of the agency.
ANALYSIS AND FINDINGS
Timeliness:
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
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 must determine
whether allegations (1) through (6), (8) through (14), and (22) through
(30) comprise part of a continuing violation.
Failure to State a Claim:
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
In its decision, the agency dismissed allegations (7), (15), (16), (17),
(20), and (21) for failure to state a claim since appellant failed to show
that he was harmed as a result of the alleged incidents. Upon review, we
find that the agency is improperly piecemealing appellant's allegations
in the complaint. The Commission has previously held that an agency
should not ignore the "pattern aspect" of a complainant's allegations
and define the issues in a piecemeal manner where an analogous theme
unites the matters complained of. Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994). Clearly, appellant is
alleging that he was subjected to harassment by the Postmaster and agency
managerial officials from 1986 to 1996. Specifically, appellant alleged
that these incidents created a hostile work environment and affected
his employment within and outside the agency, and he has identified
numerous incidents of the alleged harassment. Based on the foregoing,
we find that the agency improperly dismissed allegations (15), (16),
(17), (20), and (21) for failure to state a claim.
We, nevertheless, find that allegation (7) fails to state a claim.
Upon review, we find that the subject allegation involves a remark made
by an agency managerial official to appellant's wife. Thus, we find
that appellant did not sustain any personal harm or loss as a result
of the incident, and allegation (7) fails to state a claim.
Filing a MSPB Appeal:
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in part, that an agency
may dismiss a complaint where the complainant has raised the same matter
in an appeal to the MSPB.
The agency stated that allegations (18) and (19) and appellant's
MSPB appeal involve the same matter. Specifically, the agency stated
that on October 17, 1994, appellant filed an appeal to MSPB, Docket
No. DC-831E-95-0109-I-1, concerning the subject allegations. The record
indicates that the subject MSPB appeal involves the Office of Personnel
Management reconsideration decision affirming its previous disallowance
of appellant's application for disability retirement benefits for
which he applied on March 24, 1992. Since allegations (18) and (19)
concern the agency's misinformation with regard to appellant's ability
to receive compensation other than disability medical retirement and
his termination from employment within the agency, we find that the
subject allegations and the MSPB appeal do not concern the same matter.
Based on the foregoing, we find that the agency's dismissal of allegations
(18) and (19) was improper.
CONCLUSION
The agency's decision to dismiss allegation (7) for failure to state
a claim was proper and is AFFIRMED. The agency's decision to dismiss
allegations (15), (16), (17), (20), and (21) for failure to state a claim
and allegations (18) and (19) for stating the same claim that was raised
in an appeal to the MSPB was improper and is REVERSED. The agency's
decision to dismiss allegations (1) through (6), (8) through (14), and
(22) through (30) for untimely EEO contact is VACATED. Allegations (1)
through (6), (8) through (30) are REMANDED to the agency for further
processing in accordance with the ORDER set forth below.
ORDER
1. The agency is ORDERED to conduct an inquiry sufficient to enable
it to make a reasoned decision as to whether to accept any or all of
allegations (1) through (6), (8) through (14), and (22) through (30)
pursuant to a continuing violation theory. The agency shall conduct
such inquiry and issue a notice of processing regarding these allegations
and/or issue a final agency decision accepting or dismissing any or all
of the allegations within thirty (30) calendar days of the date this
decision becomes final.
A copy of the notice of processing and/or final agency decision must be
sent to the Compliance Officer, as referenced below.
2. The agency is ORDERED to process allegations (15) through (21),
including any accepted allegations based on the continuing violation
theory, described above, in accordance with 29 C.F.R. �1614.108.
The agency shall acknowledge to the appellant that it has received
allegations (15) through (21), including any accepted allegations based
on the continuing violation theory, described above, 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:
November 10, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations