01980771
10-29-1998
Isabel Fernandez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Isabel Fernandez v. United States Postal Service
01980771
October 29, 1998
Isabel Fernandez, )
Appellant, )
) Appeal No. 01980771
v. ) Agency No. 4E-852-1184-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On October 30, 1997, appellant filed a timely appeal with this Commission
from a September 10, 1997 final agency decision, received by her on
October 1, 1997. The agency dismissed appellant's allegation of a
hostile work environment for failure to contact an EEO Counselor in a
timely manner.
The agency previously issued a final decision on September 24, 1996,
notifying appellant that the allegation regarding an April 29, 1996
Notice of Removal was accepted for investigation, however, that the
allegation that appellant was subjected to a hostile work environment
would only be considered by the agency as background information for
purposes of investigation. On appeal, the Commission remanded the
allegations for further clarification prior to a determination regarding
their acceptability. EEOC Appeal No. 01966755 (March 6, 1997).
As a result of the Commission's remand, the agency sent a May 13,
1997 letter to appellant, wherein appellant was asked to clarify the
allegations of her hostile work environment claim. Appellant submitted
a 14-page narrative response, dated June 20, 1997. Therein, appellant
identified several incidents, some of which were dated and some of
which were not dated. Appellant also alleged in her response that the
harassment was continuing because the agency was still sending her pay
stubs to the wrong address and that she was asked by Person A, a clerk,
in front of customers when she was going to stop being lazy and return
to work. Appellant did not provide dates when she received the pay stubs
nor did she indicate when the remark was allegedly made. Subsequently,
the agency issued the present final agency decision (FAD-2).
In FAD-2, the agency framed the allegations of the complaint as whether
appellant was discriminated against on the bases of race (Hispanic),
national origin (Hispanic), sex (female), age (January 1, 1945), physical
disability, and in reprisal for prior EEO activity when appellant was
subjected to a hostile work environment and issued a Notice of Removal.
In dismissing the hostile environment allegation, the agency noted that
because the alleged discrimination began in December 1993, and ended
in September 1994, and because appellant did not raise her hostile
environment allegation until July 9, 1996, the date of the filing of
her formal complaint, the allegation was untimely. The agency also
determined that the incidents of alleged discrimination that allegedly
created a hostile work environment consisted of separate and discrete
acts which were not interrelated and, therefore, did not constitute a
continuing violation.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person 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.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
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). In determining
whether a continuing violation is present, it is important to consider
whether appellant had prior knowledge or suspicion of discrimination
and the effect of this knowledge. See Sabree v. United Brotherhood of
Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st Cir. 1990); Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
The Commission described Sabree as holding that a plaintiff who believed
he or she had been subjected to discrimination had an obligation to
file promptly with the EEOC or lose the claim, as distinguished from
the situation where a plaintiff is unable to appreciate that he or she
is being discriminated against until he or she experienced a series of
acts and is thereby able to perceive the overall discriminatory pattern.
Hagan v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Upon review, we find that the agency's decision was proper. Initially,
we note that appellant does not argue that she was unaware of the
time limit for EEO contact. In addition, for timeliness purposes,
we shall consider July 9, 1996 as the date of contact since appellant
first raised the allegation of a hostile work environment in her
formal complaint.<1> In her response to the agency's request for
a clarification of the allegation of a hostile work environment,
appellant described numerous incidents that occurred in 1993 and 1994,
however, appellant did not identify any incident which occurred within
45 days of July 1996. Although appellant alleged that the hostile work
environment was continuing, the Counselor's Report and the Notice of
Removal reveal that appellant was in an absence without leave (AWOL)
status since September 1994, and that she was terminated on June 2, 1996,
for failure to report for duty, while still in an AWOL status. Therefore,
appellant was not in the alleged hostile work environment since 1994.
In addition, we find that the incidents described in appellant's
response should have given rise to a reasonable suspicion on the part
of appellant that she was being discriminated against and subjected to
a hostile work environment. For example, in her response, appellant
alleged that she was the subject of racial jokes and slurs directed at
her personally almost from the beginning of her employment; that Person A
told her within days of her hire that she was hired because she was the
supervisor's kind; that she was isolated from co-workers; that she was
subjected to increased scrutiny; that she was treated differently than her
co-workers; and that she was "rubbed up" against by a co-worker in 1994.
Yet, despite the occurrence of several allegedly discriminatory events in
1993 and 1994, appellant did not seek EEO counseling regarding a hostile
work environment until July 1996. The Commission has consistently held
that a complainant is required to act with due diligence in the pursuit
of a claim. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). Finally, the Commission
finds that appellant's EEO contact regarding the claim of a hostile work
environment was not made timely because she contacted an EEO Counselor
in May 1996, regarding the Notice of Removal. Appellant's removal, we
find, was a separate and discrete event which occurred almost two years
after she was last at work. Consistent with our discussion herein,
the agency's final decision is AFFIRMED.
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 (S0993)
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. 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:
Oct. 29, 1998
DATE Ronnie Blumenthal, Director
1The Commission notes that in her May 3, 1996 EEO Request for Counseling,
appellant raised the issue of her Notice of Removal. When appellant
filed her complaint in July 1996, following EEO counseling, she then
alleged a hostile work environment.