01980630
10-20-1998
Donna M. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donna M. Smith, )
Appellant, )
)
)
v. ) Appeal No. 01980630
) Agency No. 1-H-328-0017-97
)
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 her 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 September 24, 1997. The appeal was filed on October 22,
1997. 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
(6), (7), and (8) for failure to state a claim and/or the incidents
raised in the complaint, which occurred prior to December 31, 1996,
due to untimely EEO Counselor contact.
BACKGROUND
The record indicates that on February 13, 1997, appellant contacted
an EEO Counselor with regard to her complaint. Unable to resolve the
matter informally, appellant filed a formal complaint dated May 27, 1997,
alleging discrimination based on physical disability (asthma, carpal
tunnel, and sesamoiditis) when she was denied reasonable accommodations
on numerous occasions in that:
(1) From January 31, 1997, to February 14, 1997, she was excluded from
the daily flat sorter machine rotation;
(2) From January 31, 1997, to February 14, 1997, she was segregated from
coworkers with the same FSM bid position by relegating lesser services
in manual flats;
(3) From January 31, 1997, to February 14, 1997, she was denied reasonable
accommodations;
(4) From January 31, 1997, to February 14, 1997, her supervisors posed
a direct threat to her health and safety when they forced her to stand
in the manual section;
(5) From January 31, 1997, to February 14, 1997, her supervisor
perpetuated the discrimination of fellow employees in P/L 341;
(6) From January 31, 1997, to February 14, 1997, she was retaliated
against by her supervisors following a safety talk on January 30, 1996,
in that she was exposed to an excessive fan;
(7) From January 31, 1997, to February 14, 1997, she suffered unlawful
harassment in the workplace which interfered, coerced, or intimidated
her through AWOL charges, assignments, and working conditions on numerous
occasions<1>;
(8) From November 30, 1996, to February 14, 1997, and ongoing, her
supervisor instigated the onset of symptoms aggravating her disabilities
in that the supervisor ignored her request to be moved to another machine
without a fan;
(9) On January 30, 1997, she became aware of AWOL charges on a copy of
her 3972;
(10) On February 14, 1997, she was denied equal rights for a requested
phone call;
(11) On January 25, 1997, she was charged with a safety infraction and
denied attendance at a Step 1 meeting which created impartial treatment;
and
(12) On November 22, 1996, December 3, 1996, and January 31, 1997, her
manager failed to acknowledge her written request to assist in mediation
for equal protection for the rights of employees with disabilities.
On September 19, 1997, the agency issued a final decision dismissing
allegations (6), (7), and (8) for failure to state a claim. In the
decision, the agency defined allegations (6), (7), and (8) as follows:
Allegation (6): Appellant was retaliated against by her supervisors
following a safety talk on January 30, 1997, and her supervisors were
advised that their discriminatory practice violated the ADA for reasonable
accommodations;
Allegation (7): Appellant was discriminated against when she suffered
unlawful harassment in the workplace which interfered, coerced, or
intimidated her; and
Allegation (8): Since November 30, 1996, and ongoing her supervisor
instigated the onset of symptoms aggravating her disabilities.
With regard to allegation (6), the agency indicated that appellant failed
to show that she was injured as a result of the incident described
in the subject allegation above. With regard to allegations (7) and
(8), the agency stated that the subject allegations were vague without
specificity. In addition, the agency, without making a reference to
specific allegations, dismissed the incidents, which occurred prior to
December 31, 1996, due to untimely EEO Counselor contact. Although the
agency pointed out the fact that appellant raised a continuing violation
with regard to her complaint, the agency did not address whether
appellant's allegations constitute a continuing violation.
ANALYSIS AND FINDINGS
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.
Upon review of the complaint, we find that the agency misdefined
allegations (6), (7), and (8), which should have been defined as follows:
(6) From January 31, 1997, to February 14, 1997, appellant was retaliated
against by her supervisors following a safety talk on January 30, 1996,
in that she was exposed to an excessive fan;
(7) From January 31, 1997, to February 14, 1997, appellant suffered
unlawful harassment in the workplace which interfered, coerced, or
intimidated her through AWOL charges, assignments, and working conditions
on numerous occasions; and
(8) From November 30, 1996, to February 14, 1997, and ongoing, her
supervisor instigated the onset of symptoms aggravating her disabilities
in that the supervisor ignored her request to be moved to another machine
without a fan.
After a review of the allegations, above, we find that appellant was
aggrieved with regard to a term, condition, or privilege of employment
as a result of the incidents described therein. Therefore. we find that
allegations (6), (7), and (8) state a claim.
With regard to the allegations in the complaint which occurred prior
to December 31, 1996, the agency dismissed these due to untimely
EEO Counselor contact without considering whether these allegations
constitute a continuing violation. 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 McGivern
v. U.S. Postal Service, EEOC Request No. 05901150 (December 28, 1990);
Starr v. U.S. Postal Service, EEOC Appeal No. 01890412 (April 6, 1989).
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, 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).
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, we find that the subject
allegations must be remanded back to the agency for consideration of
the continuing violation theory.
CONCLUSION
Accordingly, the agency's final decision dismissing allegations (6), (7),
and (8) for failure to state a claim and the portions of the allegations
in the complaint which occurred prior to December 31, 1996, due to
untimely EEO Counselor contact is REVERSED. The subject allegations
are REMANDED to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
1. With regard to the portions of appellant's allegations which occurred
prior to December 31, 1996, the agency is ORDERED to conduct an inquiry
sufficient to enable it to make a reasoned decision as to whether to
accept the subject allegations 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 the subject allegations within thirty (30) calendar days
of the date this decision becomes final.
2. With regard to allegations (6), (7), and (8), the agency shall
redefine the subject allegations, as described in this decision, and
resume processing of the subject allegations, including the allegations,
which are accepted by the agency under a continuing violation theory,
described above, in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to appellant that it has received allegations (6), (7), and
(8), 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 processing is resumed,
unless the matter is otherwise resolved prior to that time. If 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 notice of processing and/or final agency decision regarding
allegations (6), (7), and (8), and the allegations which occurred prior to
December 31, 1996, and a copy of the letter of acknowledgment and notice
that transmits the investigative file issued in accordance with provision
2 above, 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:
Oct. 20, 1998
DATE Ronnie Blumenthal, Director
1In the complaint, which included
17 pages of attachments, appellant
enumerated eleven specific incidents
of harassment.