01983789
05-26-1999
Janet Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Janet Smith v. United States Postal Service
01983789
May 26, 1999
Janet Smith, )
Appellant, )
) Appeal No. 01983789
v. ) Agency No. 4D4000029-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision 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. The final agency decision was dated March
31, 1998, and received by appellant on April 7, 1998. The appeal was
postmarked on April 15, 1998. The appeal is accepted in accordance with
EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed one of
appellant's allegations for untimely EEO Counselor contact.
BACKGROUND
Appellant initially contacted an EEO Counselor on January 28, 1997.
The EEO Counselor's report, submitted December 2, 1997, states that
appellant alleged discrimination on the basis of race (Caucasian) and
color (white) when management did not discipline a Black co-worker (C-1)
who used appellant's shoe as an ashtray on January 23, 1997. Appellant
then filed a formal complaint, dated May 7, 1997. In it appellant
alleged discrimination on the basis of race (Caucasian) and color (not
specified) when C-1 used her shoe as an ashtray (allegation one), but
also when, on September 25, 1995, another Black co-worker (C-2) forged
appellant's initials on CMU mail (allegation two). Appellant asserts,
in her formal complaint, that she has "had to tolerate harassment for
twelve years from [the same] two Black employees", C-1 and C-2, and that
management refused to discipline these individuals. The "Information
for Precomplaint Counseling" identifies these management officials as
S-1, S-2 and S-3. In the Final Agency Decision (FAD), dated March 31,
1998, the agency accepted allegation one, but dismissed allegation two
as untimely. The agency found allegation two to be untimely because
the alleged discriminatory event took place on September 25, 1995.
Appellant, however, did not contact an EEO Counselor until January
28, 1997, approximately one year and four months after the alleged
discriminatory action took place. The agency did not address, either
in the FAD or in its appeal statement, whether the two allegations of
harassment constituted a continuing violation. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or within 45 days of the
effective date of the personnel action. The Commission has held that
the time requirement for contacting an EEO Counselor can be waived as to
certain allegations within a complaint when the complainant alleges: 1)
that although she waited more than 45 days to initiate EEO counseling,
she did not suspect discrimination at the time the action in question
occurred, see Bracken v. Postal Service, EEOC Request No. 05900065 (March
29, 1990); or 2) she was unaware of the 45-day time period, see Pride
v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993); or 3)
a continuing violation, that is, a series of related discriminatory acts,
one of which falls within the time period for contacting an EEO Counselor.
See McGivern v. USPS, EEOC Request No. 05901150 (December 28, 1990).
In the instant case, appellant did not allege that she did not suspect
discrimination at the time it occurred or that she was unaware of the
45 days to initiate counseling. She does, however, appear to allege a
continuing violation. She states, in her formal complaint, that she
had been harassed for the past 12 years by the same two employees,
C-1 and C-2, and that management had done nothing about the harassment.
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). 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 the appellant. Scott v. Claytor, 469 F.Supp. 22,26
(D.D.C. 1978).
Relevant to the finding of a unifying theme are whether the same officials
were involved in the adverse actions and whether the incidents were of
a similar nature. Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990). Also relevant to the inquiry is
whether appellant had prior knowledge or suspicion of discrimination
and the effect of this knowledge. Blighton v. Department of Treasury,
EEOC Request No. 05940483 (November 29, 1994)(citing Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990)). Incidents which are sufficiently distinct to trigger
the running of the limitations period do not constitute a continuing
violation. Berry.
The Commission finds that appellant has not established that allegation
two is part of a unifying theme to warrant a finding of continuing
violation. Appellant points to the same management officials, S-1,
S-2 and S-3 in both allegations. The allegations are arguably of a
similar nature; although one allegation involves forgery and the other
misuse of appellant's belongings, both involve a failure by management to
discipline those responsible. Allegation two, however, was a separate
and discrete event which should have triggered appellant's reasonable
suspicion that she had been subjected to discrimination. The incident
involved in allegation two occurred one year and four months prior to
the January 28, 1997, counselor contact. In addition, appellant states
that C-1 and C-2 have harassed her for the last twelve years and that
management has not disciplined them. Appellant did not, however, give
any specific instances of the harassment occurring over the past twelve
years beyond those incidents contained in allegations one and two.
We, therefore, agree with the agency that allegation two is untimely.
However, appellant may raise allegation two as background evidence in
support of her harassment claim. (See e.g Ferguson v. Department of
Justice, EEOC Request No. 05970792 (March 31, 1999)).
CONCLUSION
Accordingly, the decision of the agency was proper and 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:
May 26, 1999
______________ ______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations