01985458
06-14-1999
Rella Sue Watts, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rella Sue Watts v. United States Postal Service
01985458
June 14, 1999
Rella Sue Watts, )
Appellant, )
)
v. )
) Appeal No. 01985458
William J. Henderson, ) Agency No. 4-C-080-0028-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) 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. and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The FAD was dated June 9, 1998 and the appeal was postmarked July 2, 1998.
Accordingly, the appeal is timely and is accepted in accordance with
EEOC Order No. 960, as amended.
On November 19, 1997 appellant contacted an EEO counselor, alleging
discrimination on the bases of sex (female), age (44), and retaliation
(prior EEO activity). She subsequently filed a EEO complaint, on
April 21, 1998, alleging that she was discriminated against when: (1)
On August 15, 1997 she received a discussion concerning circulars being
thrown away; (2) On August 16, 1997 she received a discussion concerning
comments made on July 30, 1997 on the loading dock; (3) On August 18,
1997, Postmaster jumped into her case and started shouting at her over a
piece of marked up mail; she went to the library for a comfort stop and
Postmaster told her to get on the street; and (4) On October 8, 1997
she received a seven day suspension for Violations of the Employee &
Labor Relations Manual �666.2 Behavior and Personal Habits.
The agency dismissed allegations (1), (2), and (3) for failure to timely
contact a counselor and accepted allegation (4). The FAD stated that
the appellant did not contact the EEO office until November 19, 1997,
well beyond the forty-five (45) day time limitation. The agency also
noted that appellant did not claim to be unaware of the time limits.
On appeal, appellant's attorney argues that the dismissed allegations are
part of a continuing violation of "continuous and ongoing harassment",
and therefore should be included to show a pattern.
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 time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all
the facts that support a charge of discrimination have become apparent.
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).
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 of Louisiana State Univ.,
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).
In the instant case, we find that appellant failed to establish a
continuing violation. A review of the record shows that appellant
should have had a reasonable suspicion of discrimination more than 45
days before she initially contacted the EEO office. For example, on
October 18, 1997 appellant filed a grievance regarding allegation (4)
and other issues that occurred in May 1997. In her complaint appellant
alleged "a pattern and practice of ongoing harassment" and she included
"all issues from my last EEO filing and ongoing." Therefore, in light of
these past occurrences and the discrete nature of the alleged events,
appellant should have reasonably suspected discrimination in August
when the allegations occurred. Appellant's November 19, 1997 contact
was untimely, and since she has not established a continuing violation,
we find the agency properly dismissed the allegations pursuant to 29
C.F.R. �1614.107(b).
CONCLUSION
Accordingly, the agency's decision dismissing allegations (1) - (3)
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:
June 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations