01977051
10-16-1998
Young T. Oh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Young T. Oh, )
Appellant, )
)
v. ) Appeal No. 01977051
) Agency No. 1K-222-0030-97
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 his 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 issued on September
8, 1997. The appeal was postmarked September 26, 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 presented on appeal is whether the agency properly dismissed
allegation 1 and portions of allegations 2 and 3 of appellant's complaint
on the grounds of failure to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 9, 1997.
On July 1, 1997, appellant filed a formal EEO complaint wherein he alleged
that he had been discriminated against in reprisal for his previous EEO
activity when:
1. On September 8, 1996, his supervisor gave him a pre-disciplinary
interview regarding sick leave.
2. From September 3, 1996 through April 18, 1997, his supervisor
intentionally cut him off from receiving overtime. From April 18,
1997 - June 11, 1997, his entire pay location was removed from the
overtime schedule. After he voluntarily withdrew his name from the
Desired Overtime List on June 11, 1997, his pay location started getting
overtime assignments.
3. From January 1, 1997 to April 18, 1997, his supervisor made a
six-day work schedule for SPBS employees and a five-day work schedule
for appellant's work area or the 050 manual employees, which caused
him to lose overtime on unspecified dates when the SPBS employees were
assigned to the 050 operation on their scheduled day off.
4. On unspecified dates, he did not receive Sunday premium pay and his
supervisor did not take measures to correct his paycheck.
5. On April 16, 1997, his request for sick leave for two weeks was
disapproved; and a subsequent request for leave under the Family Medical
Leave Act was disapproved.
In its final decision, the agency dismissed allegation 1 of appellant's
complaint on the grounds that appellant failed to contact an EEO
Counselor in a timely manner. The agency dismissed the portions of
allegations 2 and 3 related to the time frames of September 3, 1996
through March 24, 1997, and January 1, 1997 through March 24, 1997,
respectively. The agency noted that appellant provided no evidence
that he was unaware of the time limit for contacting an EEO Counselor.
Allegations 4 and 5 were accepted for investigation. The agency also
accepted for investigation the portions of allegations 2 and 3 that
occurred after March 24, 1997.
On appeal, appellant contends that he did not know that he was being
subjected to reprisal when he began losing overtime on September 3, 1996.
According to appellant, it became clear to him that the agency's decision
not to grant him overtime was directly targeted against him after he
suffered an increased frequency of overtime denials in December of 1996,
and January, February, March and April of 1997. Appellant claims that he
also began to suspect discrimination when from January of 1997 until April
of 1997, his work section received shorter work schedules. Appellant
argues that the 45-day limitation period should also be extended because
the agency's retaliatory intent did not become apparent to him until the
agency failed to fulfill its responsibilities under a grievance settlement
from December 1996 - April 1997. Appellant appears to suggest that the
series of actions taken against him constitute a continuing violation.
In response, the agency acknowledges that it miscalculated the time
frames for the portions of allegations 2 and 3 that were accepted for
investigation. The agency therefore revised its decision of September
1997, to reflect that with regard to allegation 2, the investigation would
cover the dates of February 23, 1997 through April 18, 1997. The agency
determined that the portion of allegation 2 relating to the dates of
September 3, 1996 through February 22, 1997 was dismissed. As for
allegation 3, the agency stated that the time frame to be investigated
would be from February 23, 1997 to April 18, 1997. The agency determined
that the portion of allegation 3 relating to the dates of January 1,
1997 through February 22, 1997 was dismissed. The agency set forth the
criteria for determining whether a continuing violation had occurred.
The agency maintains that appellant had a reasonable suspicion of
discrimination several months before he contacted an EEO Counselor.
The agency notes that appellant filed a grievance on September 27, 1996,
regarding his loss of overtime opportunities. Further, the agency argues
that appellant's early awareness of discrimination is evident based
on his statement that he was being directly targeted by management for
denials of overtime in December of 1996 and January and February of 1997.
The agency notes with regard to allegation 3 that appellant suspected
discrimination in January 1997, when his work section began receiving
shorter work schedules. Finally, the agency states that on January 15,
1997, appellant filed a grievance concerning a breach of a settlement
agreement regarding overtime opportunities.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
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.
Appellant also argues that the allegations of his complaint form a
continuing violation. 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. United States Postal Service, EEOC Request No. 05901150 (December 28,
1990); Starr v. United States 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 determining whether a continuing violation exists, the Commission
has relied on the decision in Berry, wherein the court set forth three
relevant factors:
The first is subject matter. Do the alleged acts involve the same type
of discrimination, tending to connect them in a continuing violation?
The second is frequency. Are the alleged acts recurring (e.g., a
biweekly paycheck) or more in the nature of an isolated work assignment
or employment decision? The third factor, perhaps of most importance,
is degree of permanence. Does the act have the degree of permanence
which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to be
expected without being dependent on a continuing intent to discriminate?
Berry, 715 F.2d at 981. Incidents that are sufficiently distinct
to trigger the running of the limitations period do not constitute
continuing violations. See, e.g., Miller v. Shawmut Bank, 726
F. Supp. 337, 341 (D. Mass. 1989); Cogen v. Milton Bradley Co./Hasbro
Inc., 449 Empl. Prac. Dec. (CCH) �38,894 (D. Mass. 1989). In Cogen,
the court rejected the plaintiff's attempt to apply the continuing
violation theory to, among other allegations, an assignment issue.
The court stated that "discrete acts of discrimination taking place
at identifiable points in time" are not continuing violations for the
purpose of extending the limitations period. Id. at 58,757; see also
Edinboro v. Department of Health & Human Services, 704 F. Supp. 364,
367 (S.D. N.Y. 1988) (demotion not a continuing violation).
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. See
Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33, 921
F.2d 396 (1st Cir. 1990) (plaintiff who believed he had been subjected
to discrimination had an obligation to file promptly with the EEOC or
lose his claim, as distinguished from the situation where a plaintiff
is unable to appreciate that he is being discriminated against until he
has lived through a series of acts and is thereby able to perceive the
overall discriminatory pattern).
The record reveals with regard to allegation 1 that appellant received
a pre-disciplinary interview on September 8, 1996. Appellant did not
initiate contact with an EEO Counselor until April 9, 1997, after the
expiration of the 45-day limitation period. We note that allegation 5
concerning the denial of sick leave, which was accepted for investigation,
is related to allegation 1 to the extent that it is another incident
involving appellant's sick leave usage. There is no evidence of record
that appellant should have suspected, or did suspect, discrimination
regarding the agency's treatment of him with regard to his sick leave
usage prior to April 1997. Accordingly, the agency's decision to dismiss
allegation 1 on the grounds of untimely EEO contact was improper and
is REVERSED. This allegation is hereby REMANDED for further processing
in accordance with the ORDER below.
With regard to allegation 2, we note that the agency in its response
amended the final decision to accept for investigation the period
commencing on February 23, 1997. As for the period prior to this date,
we note that appellant stated it became clear to him that the agency
was directly targeting him for denial of overtime opportunities in
part based on the denials of overtime in December of 1996 and January
and February of 1997. We note that appellant also filed grievances in
September 1996 and January 1997, with regard to being denied overtime.
We find that appellant had a reasonable suspicion more than 45 days
before he contacted an EEO Counselor. In light of this finding, we
conclude that appellant has not set forth a continuing violation with
respect to allegation 2. Accordingly, the agency's decision to dismiss
allegation 2 is MODIFIED in accordance with the different time period
set forth in the agency's response to the instant appeal.
As for allegation 3, we note that the agency stated in its response
that it was amending its final decision to accept for investigation the
period commencing on February 23, 1997. In his appeal, appellant stated
that starting from January of 1997 until April of 1997, his work section
received a shorter schedule than the other work sections. The agency
concludes based on this statement that appellant had a reasonable
suspicion of discrimination in January 1997. We find that this conclusion
is not warranted based on appellant's statement alone. Appellant claims
that he had fewer opportunities for overtime due to the differences in
work schedules. In light of the impact on appellant's ability to work
overtime, we find that the dismissed portion of allegation 3 bears a
sufficient nexus to the accepted portion of allegation 3, as well as the
accepted portion of allegation 2. Accordingly, the agency's decision to
dismiss allegation 3 on the basis of untimely EEO contact was improper
and is REVERSED. Allegation 3 is hereby REMANDED for further processing
in accordance with the ORDER below.
CONCLUSION
The agency's decision dismissing allegation 2 of appellant's complaint
on the grounds of untimely EEO contact is hereby AFFIRMED with regard
to the portion of the allegation that pertains to the period prior to
February 23, 1997. The agency's decision dismissing allegations 1, 3 and
the portion of allegation 2 that pertains to the period of February 23,
1997, through March 24, 1997, on the grounds of untimely EEO contact is
hereby REVERSED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations