05990190
05-13-1999
Dennis J. Campbell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis J. Campbell v. United States Postal Service
05990190
May 13, 1999
Dennis J. Campbell, )
Appellant, )
)
v. ) Request No. 05990190
) Appeal No. 01983550
William J. Henderson, ) Agency No. 4C-175-1070-96
Postmaster General, )
United States Postal Service, )
Agency. )
)
GRANTING OF REQUEST TO RECONSIDER
On November 17, 1998 the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Campbell v. United States Postal Service, EEOC Appeal
No. 01983550 (November 10, 1998). On Monday, December 14, 1998, the
agency initiated a request to the Commission for reconsideration of
the same decision. As a return receipt shows it received the decision
on November 13, 1998, we find the agency's request to be timely.
29 C.F.R. �1614.407(b) and .604(d). EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation or material fact, or misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
ISSUES PRESENTED
Whether the previous decision properly (1) vacated the portion of the
agency's final decision (FAD) which dismissed part of the appellant's
complaint for failure to timely seek EEO counseling, (2) properly reversed
a portion of the FAD which dismissed one allegation for failure to state a
claim, and (3) whether the FAD's dismissal of certain allegations should
be upheld on other procedural grounds.
BACKGROUND
The appellant started working for the agency at the Fort Lauderdale,
Florida Post Office in 1971. When he left this post office in January
1986, he was a Supervisor of Mails, EAS-15. He started working for
the agency again as a clerk at the Lansdale, Pennsylvania Post Office
on March 1, 1986. The appellant was terminated effective May 22, 1986
on the grounds of poor attendance and unsatisfactory task performance.
He was reemployed as a clerk at the Lansdale Post Office in October 1987,
and transferred to the Hatfield, Pennsylvania Post Office the same year.
The appellant stopped reporting to work in August or September 1991,
and was removed in March 1992 for attendance related reasons. He moved
to Israel in 1992, and returned to the United States in June 1995.
In May 1996, the appellant was using the services of a Veterans Affairs
Employment Representative employed by the State of California to help
secure employment. At the request of the appellant, the representative
contacted the appellant's last agency employer, the Hatfield Post Office
to determine if it was giving derogatory references to prospective
employers. On May 14, 1996, the representative wrote that the Hatfield
Postmaster stated she would not recommend the appellant to her worst
enemy, and to trust that he would not be a good hire. This matter regards
allegation (31) which was accepted by the agency for investigation and
set forth in the previous decision.
The appellant contacted an EEO counselor with regard to his complaint on
May 15, 1996, thereafter filing a formal complaint. The agency issued a
FAD which found that the appellant alleged he was discriminated against
on the basis of disability (Post traumatic stress disorder (PTSD))
with regard to 31 numbered allegations, which were set forth in the
previous decision.
The FAD dismissed allegations (1) through (6), (8) through (14), and (22)
through (30) for failure to timely seek EEO counseling. It dismissed
allegations (7), (15), (16), (17), (20), and (21) for failure to state
a claim. It 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).
The previous decision vacated the agency's dismissal of allegations (1)
through (5), (8) through (14), and (22) through (30) on the grounds that
the agency did not address the appellant's contention that the matters
in his complaint were timely under the continuing violation rule.
It ordered the agency to address this matter. The previous decision
reversed the dismissal of allegations (15), (16), (17), (20), and
(21). It reasoned that these allegations stated a claim because they
constituted part of a claim of alleged harassment which would cause harm.
The previous decision affirmed the agency's dismissal of allegation (7),
reasoning that the appellant was not harmed. Finally, it reversed the
agency's dismissal of allegations (18) and (19), finding they were not
identical to a matter the appellant previously appealed to the Merit
Systems Protection Board (MSPB).
In his request for reconsideration, the appellant argues that allegation
(7) states a claim because he was aggrieved. In its request for
reconsideration, the agency argues that allegations (1) through (6), (8)
through (14), and (22) through (30) are not timely under the continuing
violation rule. In response to the agency's request, the appellant
argues that there is sufficient information in the record to make a
determination finding a continuing violation.
ANALYSIS AND FINDINGS
In order to prompt the Commission to reconsider its previous decision,
a party must present evidence or argument that satisfies one of the
criteria of 29 C.F.R. �1614.407. After considering the parties requests,
we find that the appellant's request fails to meet the criteria for
reconsideration, and the agency's request meets the criteria.
We agree with the contention of the parties that the record is sufficient
to address the continuing violation rule, and will do so here. 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 a personnel
action, within 45 days of the effective date of the action. This time
limit may be extended if an appellant shows that he did not know and
reasonably should not have known that the discriminatory matter occurred.
29 C.F.R. �1614.105(a)(2). Also, the time limit is subject to extension
under the continuing violation rule. To establish a continuing violation,
the appellant must show a series of related acts, one or more of which
falls within the limitations period. Vissing v. Nuclear Regulatory
Commission, EEOC Request No. 05890308 (June 13, 1989).
ALLEGATIONS (1) THROUGH (10), (13) AND (14); (15), (17) THROUGH (21)
and (25) THROUGH (28)
In March 1986, the appellant was investigated by the Postal Inspection
Service because of a suspicion that he engaged in theft. The appellant
avers that he did not engage in theft, and that the Postal Inspection
Service did not clear his name. He contends that as a result of this
matter, he developed PTSD. The appellant asserts that the theft matter
prompted the negative reference in May 1996, which was part of continuing
actions against him due to the theft accusation.
Allegation (1) regarded the appellant allegedly being told in January
1986 that if he did not resign he would be fired. This matter is not
part of such an alleged continuing violation. It occurred before the
alleged theft. Accordingly, the agency's dismissal of allegation 1
is affirmed.
Allegations (2) through (10), (13) and (14) regard the appellant's job
at the Lansdale Post Office from March 1986 to May 1986, and his attempts
to appeal his termination therefrom to the MSPB. As early as July 1986,
the appellant contended that he was not removed for the reasons charged,
but because of the theft accusation. Allegations (13) and (14) regard
the agency gathering information to support the removal. According to the
appellant, the MSPB dismissed the appeal for being untimely filed and lack
of jurisdiction. The agency argued that the MSPB lacked jurisdiction
since the appellant was a probationary employee, and allegation (2)
regards whether the appellant was a probationary employee. On appeal,
the appellant clarified that as a result of the matter in allegation
(5), he did not get appeal rights to the MSPB.
Allegations (15), (17) through (21) and (25) through (28) regard the
appellant's job at the Hatfield, Pennsylvania Post Office from late 1987
until his removal in March 1992. He has not worked for the agency since.
The alleged event in allegation (20) occurred in May or June 1989,
and is related to allegation (25). Commencing around late June 1991
the appellant largely ceased reporting to work. He contended this was
due to his PTSD, and suggested he was not reasonably accommodated with
time to recover in the form of advanced sick leave. Allegation (18)
concerns the agency's failure to tell the appellant in July 1991 that he
could apply for workers' compensation. Allegations (21), (26) and (28)
regard the agency not providing the appellant a paycheck while he was not
working in the summer of 1991. This allegedly forced him to return to
work in late August or early September 1991, the subject of allegation
(28). Allegations (15) and (17) regard the appellant's final return to
work for three days in late August or early September 1991. Specifically,
according to the appellant, he was taking a drug for his PTSD, which made
driving contraindicated, and the agency allegedly failed to accommodate
the appellant when it assigned him to deliver mail in a motor vehicle
rather than other work. The appellant contended that this resulted in an
environment so unbearable that he was unable to return to work, causing
his constructive and actual discharge, the subject of allegation (19).
The agency did not define occurrence dates with regard to allegations
(15) and (17) through (21). We were able to determine the dates from
information the appellant submitted on appeal. The agency dismissed
these allegations on procedural grounds not involving timeliness.
The previous decision reversed. In response to the agency's request
for reconsideration, the appellant submits correspondence showing that
in December 1998 the agency initiated a limited inquiry to determine,
in part, the occurrence dates. In light of the agency's prior dismissal
of these allegations on other grounds and to avoid the piecemealing
of the appellant's complaint, we will consider the timeliness of these
allegations.
As an initial matter, we find that all the above allegations are
not sufficiently related to the one timely incident to be part of a
continuing violation. The allegations that relate to the Lansdale job
from which the appellant was removed in May 1986 occurred before he worked
under the Postmaster who gave the negative reference, and some 10 years
prior to the one timely incident, attenuating any alleged connection.
The Postmaster in question was appointed Postmaster of the Hatfield Post
Office in July 1991. The other allegations related to the appellant's
Hatfield job and occurred from May 1989 to March 1992. Also, once the
appellant was removed from each job and his appeal of his first removal
to the MSPB was denied, as applicable, all of the above allegations took
on a degree of permanence which should have triggered his awareness of
a duty to assert his rights. Accordingly, all of the above allegations
are untimely and the agency's dismissal of them, albeit some on different
grounds, is affirmed.
As we find that allegation (7) was untimely, we need not address whether
it states a claim. We add, however, that allegations (9) and (10) fail
to state a claim because they constitute a collateral attack challenging
another forum's proceeding (the MSPB). Lau v. National Credit Union
Administration, EEOC Request No. 05950037 (March 18, 1996).
ALLEGATIONS (11), (12), (16), AND (22) THROUGH (24)
Allegations (11) and (12) concern the appellant's failure to obtain
employment or be reinstated to the Fort Lauderdale Post Office from March
1986 to October 1987, allegedly due to derogatory employment references.
Allegation (22) regards the appellant being turned down for positions in
California with the agency in 1987 and 1988. Allegations (23) and (24)
regard the appellant being denied supervisory positions in 1988 and 1989.
Allegation (16) regards the appellant not being transferred to another
geographical location in late 1991.
On appeal, the appellant submitted documentation indicating that in
1987 and again in 1993 be believed he was being discriminated against
with regard to the matters in allegations (11) and (12). In 1987, he
authored a document stating that he had been "blackballed," as evidenced
by post offices hiring others but not him and the Fort Lauderdale Post
Office falsely writing it reviewed his official personnel file. In a
1993 document the appellant represented that during the period covered by
allegations (11) and (12) he was "blackballed" by the agency and unable
to find a job anywhere. The appellant does not indicate that this belief
ceased during the periods covered by allegations (16) and (22). In fact
he professed that in 1988 he was still under investigation for theft.
Similarly, with regard to allegation (23), the appellant contended that
three months after he was recommended as a supervisory candidate in 1988,
the Postal Inspector who investigated him for theft informed him that he
would never get a supervisory position because he was under investigation
for theft, and with regard to allegation (24) the appellant submitted
documentation showing that in November 1989, his wife called the Postal
Inspector and wanted to talk about false accusations.
In addition to finding that the appellant suspected discrimination with
regard to the above allegations near the time they occurred, we find that
they are not sufficiently related to the one timely incident to be part
of a continuing violation. All but allegation (16) occurred before the
appellant worked under the Postmaster who gave the negative reference in
May 1996, and were many years prior to the one timely incident. Further,
after the appellant was reemployed with the agency in October 1987 and
then terminated a second time in March 1992, all the above allegations
took on a degree of permanence which should have triggered his awareness
of a duty to assert his rights. Accordingly, the agency's dismissal of
the above allegations is affirmed.
ALLEGATIONS (29) AND (30)
With regard to allegation (29), the appellant contended that he was
"exiled" to Israel in 1992 due to the harassing actions of the Postal
Inspection Service. He described events such as coming home from
vacations and finding that furniture had been slightly moved and
previously locked windows unlocked, and having to constantly look over
his shoulder to see if he was being followed. With regard to allegation
(30), the appellant contended that he was informed while in Israel by
a family friend that his family was wanted by the FBI.
The above allegations are not sufficiently related to the one timely
incident to be part of a continuing violation. They are different in
nature from a negative reference. We add that the appellant's decision
to move to Israel is not an employment action.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
request for reconsideration, the appellant's response thereto, and the
entire record, the Commission finds that the appellant's fails to meet
the criteria of 29 C.F.R. �1613.407(c), and the agency's request meets
the criteria. It is therefore the decision of the Commission to deny the
appellant's request and grant the agency's request. The decision of the
Commission in EEOC Appeal No. 01983550 is VACATED, and the agency's final
decision is affirmed, albeit partly on different procedural grounds.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
May 13, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat