01980582
10-08-1998
Pearleen G. Howard-Grayson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Pearleen G. Howard-Grayson, )
Appellant, )
)
v. ) Appeal No. 01980582
) Agency No. 4K-220-0086-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed a portion of allegation (1), pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for failure to initiate contact with an EEO
Counselor in a timely manner. Appellant alleged that she was subjected
to discrimination on the bases of sex (female) and mental disability
(emotional) when:
From November 1995, through July 1996, despite an Office of Workers
Compensation Programs ("OWCP") accepted job-related injury, appellant
was subjected to a hostile work environment and harassed regarding
her job performance, causing her to go on Leave Without Pay ("LWOP")
since approximately July 1996; and
On March 5, 1997, appellant was issued a Notice of Removal.
On September 23, 1997, the agency issued a final decision accepting
allegation (2), and that portion of allegation (1) regarding appellant's
placement on LWOP since approximately February 18, 1997. The agency
dismissed the portion of allegation (1) concerning the harassment to
which appellant was subjected, and her placement on LWOP between July
1996, through February 17, 1997, for untimely EEO Counselor contact.
Specifically, the agency determined that appellant's April 4, 1997 initial
EEO Counselor contact occurred more than forty-five (45) days from the
alleged incidents of discrimination which occurred prior to February 18,
1997, and was, therefore, untimely.
On appeal, appellant contends that she was unaware of the forty-five
(45) day time limit for initiating EEO Counselor contact. Appellant
also asserts that she was unable to deal with the paperwork required
because of the stress she was under as a result of the discrimination to
which she was subjected. Additionally, appellant argues that she was
not aware that she needed to file an EEO complaint concerning these
matters because she thought that her OWCP claim would also address
her allegations of discrimination. Finally, appellant contends that
she established a continuing violation with respect to the timely and
untimely portions of allegation (1), and, therefore, dismissal pursuant
to 29 C.F.R. �1614.107(b) was improper.
In response, the agency provided an affidavit from the Senior EEO
Complaints Processing Specialist stating that an EEO poster containing
the forty-five (45) day time limit for initiating EEO Counselor contact
was present at appellant's work location at all times relevant to
this complaint. Also, the agency points out that in 1993, appellant
twice initiated her rights under the EEO process, and argues, therefore,
that appellant had firsthand knowledge of the time limits. With regard
to appellant's assertion that she was unable to fill out the necessary
paperwork because of the stress caused her, the agency contends that
appellant was not incapacitated during this time period, as evidenced by
the four page letter she sent to the OWCP on August 21, 1996. Further,
the agency argued that appellant failed to establish a continuing
violation because she had a reasonable suspicion of discrimination well
before she initiated contact with an EEO Counselor. In support of its
position, the agency noted that appellant's August 21, 1996 letter to
the OWCP indicated that she suspected discrimination.
The Commission notes that the record contains an August 21, 1996 letter
from appellant to the Office of Workers' Compensation. In it, appellant
alleged that she was subject to harassment by management and coworkers
which created a hostile work environment.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Appellant contends that she was unaware of the relevant time period
for initiating contact with an EEO Counselor concerning complaints
of discrimination. However, the agency provided sufficient evidence
showing that an EEO poster containing the relevant time limitations was
present at appellant's work location. Therefore, we find that appellant
had constructive knowledge of the applicable time limits. See Santiago
v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995).
Moreover, the record establishes that appellant twice initiated the EEO
complaint process in 1993. Consequently, we find that appellant knew
or should have known of the time limit for EEO Counselor contact.
Appellant further asserts that she was unable to comply with the
forty-five (45) day time limit because of the stress she was under.
However, appellant failed to prove that she was so incapacitated that
she was unable to assert her rights. We have consistently held,
in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by
his condition that he is unable to meet the regulatory time limits.
See Crear v. United States Postal Service, EEOC Request No. 05920700
(October 29, 1992); Weinberger v. Department of the Army, EEOC Request
No. 05920040 (February 21, 1992); Hickman v. Department of the Navy,
EEOC Request No. 05910707 (September 30, 1991); Johnson v. Department of
Health and Human Services, EEOC Request No. 05900873 (October 5, 1990);
and Zelmer v. United States Postal Service, EEOC Request No. 05890164
(March 8, 1989). Finally, the Commission is not persuaded by appellant's
assertion that she thought her allegations of discrimination would be
addressed within the context of her OWCP claim. The EEO posters at
appellant's work location provided the proper information for pursuing
a claim of discrimination. Moreover, appellant's prior EEO activity
suggests that she was aware of the proper method for asserting her rights.
Based on the foregoing, we find appellant's justification insufficient
to extend the applicable time period.
However, 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).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered
an employee's awareness and duty to assert his or her rights; and,
whether the same agency officials were involved. Woljan v. Environmental
Protection Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge. Jackson
v. Department of the Air Force, EEOC Request No. 05950780 (June 27, 1997).
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
harassment, "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." However,
here, where the agency addressed the continuing violation theory in its
response to appellant's appeal, the Commission finds no reason to remand
this issue.
In the instant case, we find that appellant was unable to establish
a continuing violation because the record indicates that she had a
reasonable suspicion of discrimination as early as August 21, 1996.
On that date, appellant clearly articulated that suspicion in her letter
to the OWCP detailing her job-related mental disability. Appellant's
reasonable suspicion of discrimination, therefore, prevents her from
utilizing the continuing violation theory to maintain the untimely
portion of her complaint. Based on the foregoing, we find that allegation
(1) should have properly been dismissed in its entirety for failure to
initiate contact with an EEO Counselor in a timely manner.
Accordingly, the agency's final decision dismissing appellant's complaint
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. 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. 8, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations