01981803
02-26-1999
Doris S. Lampkin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doris S. Lampkin v. United States Postal Service
01981803
February 26, 1999
Doris S. Lampkin, )
Appellant, )
)
v. ) Appeal No. 01981803
) Agency No. 4-H-310-0021-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. Appellant received the final agency decision
on December 1, 1997. The appeal was postmarked December 29, 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.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
2 and 3 of appellant's complaint on the grounds that appellant failed
to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on September 17, 1997.
In a formal EEO complaint dated October 17, 1997, appellant alleged
that she had been discriminated against on the bases of her sex (female)
and race (African-American) when:
1. She was issued a Notice of 7-day Suspension, dated August 7, 1997,
charging her with being Absent Without Leave (AWOL).
2. After getting off the General Overtime Desired List, she was frequently
called in to work overtime on routes other than her own in or about
March 1996.
3. In approximately 1990-91, she was harassed by a coworker who made
obscene telephone calls to her residence.
4. She was subjected to harassment by this coworker on September 11,
1997, as he continually berated her and got in her face in a threatening
manner, thus creating a hostile environment.
In its final decision, the agency dismissed allegations 2 and 3 of
appellant's complaint on the grounds of failure to contact an EEO
Counselor in a timely manner. The agency determined that appellant's
EEO contact with regard to these allegations was after the expiration
of the 45-day limitation period. The agency further determined that
appellant failed to provide a credible explanation to justify extending
the time limits. Allegations 1 and 4 were accepted for investigation.
On appeal, appellant contends that her complaint sets forth a continuing
violation. Appellant argues that prior to the date she was determined
to be AWOL, she complained of sex discrimination in the administration
of overtime, and that in reprisal for making that complaint management
ignored her complaints of sexual harassment. Appellant maintains that the
agency failed to investigate her allegation of a continuing violation.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i) required that complaints
of discrimination should have been brought to the attention of the
Equal Employment Opportunity Counselor within thirty (30) calendar days
of an alleged discriminatory event, the effective date of an alleged
discriminatory personnel action, or the date that the aggrieved person
knew or reasonably should have known of the discriminatory event or
personnel action. EEOC Regulation 29 C.F.R. �1614.105(a)(1) extended
the time limit for contacting an EEO Counselor to forty-five (45) days
for actions occurring on or after October 1, 1992, the effective date
of the new regulations.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.
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 McGovern 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).
In the present case, appellant alleges that she was subjected to
a continuing violation of harassment and reprisal. The incidents
set forth in appellant's complaint occurred in the period of 1990 to
September 1997. Appellant initiated contact with an EEO Counselor on
September 17, 1997. The incidents that occurred in August and September
1997 were accepted for investigation. We find that the issue of a
continuing violation needs to be addressed. 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's decision to dismiss allegations 2 and 3 of appellant's complaint
on the grounds of untimely EEO contact is VACATED. Allegations 2 and 3
are hereby REMANDED to the agency for a determination regarding whether
a continuing violation has been established.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation into whether
appellant has established a continuing violation.
Thereafter, the agency shall decide whether to process or dismiss
allegations 2 and 3 of appellant's complaint. 29 C.F.R. �1614.106 et seq.
The supplemental investigation and issuance of the notice of processing
and/or final decision must be completed within thirty (30) calendar days
of the date this decision becomes final. A copy of the final decision
and/or notice of processing must be submitted 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:
Feb 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations