01993910
01-24-2001
Clifford W. Stewart, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clifford W. Stewart v. United States Postal Service
01993910
January 24, 2001
.
Clifford W. Stewart,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993910
Agency No. 1C-441-0043-99
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated March 26, 1999, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The agency defined complainant's complaint as alleging that
he was subjected to discrimination on the basis of disability (Disabled
Veteran) when:
On October 16, 1998, complainant was denied light duty, was to told to
see his doctor, and he filled out a PS Form 3971 for 40 hours due to
the time requirements to get an appointment to see his doctor.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. The agency noted that the alleged discriminatory event
occurred on October 16, 1998, however, complainant did not contact an
EEO Counselor until December 16, 1998, which was beyond the applicable
limitation period for timely counselor contact.
On appeal, complainant claims that the agency incorrectly defined his
EEO complaint. Complainant states that in his complaint he alleged that
the Attendance Control Office (ACO) and Person A, a supervisor in the ACO,
subjected him to harassment based on his disability. Complainant claims
that the harassment began in October 1998, when he was denied light duty
but notes that the last act of alleged harassment occurred on December 4,
1998, the date the ACO
wrote him up for not maintaining a proper work schedule for certain
dates in October. Complainant claims that since his complaint involved
an on-going claim of harassment, the complaint should not be dismissed
for untimely EEO Counselor contact since he contacted a counselor within
forty-five (45) days of the last act of harassment on December 4, 1998.
In response to complainant's appeal, the agency states that the only
issues before the Commission are those that were addressed in the
agency's final decision, specifically, the October 16, 1998 incident.
The agency reiterates its argument that complainant's complaint should
be dismissed for untimely EEO Counselor contact.
On PS Form 2564-A, Information for Precomplaint Counseling, complainant
stated that his request for light duty was denied on October 16, 1998,
and he was told by Person A to fill out a PS Form 3971 and to go see
his doctor. After filling out a PS Form 3971 requesting 40 hours of
leave pursuant to the Family and Medical Leave Act (FMLA) complainant
stated that in December 1998, he was written up for not following his
work schedule for nine days (he claimed that five of these days involved
the 40 hours of leave he took to see his doctor). Following the write
up, complainant learned that his FMLA Form had been lost and therefore
never processed. Complainant also stated that in November 1998 Person A
accused him of requesting light duty and then filling out a CA-2 form to
avoid light duty which resulted in complainant receiving �a grilling� from
his supervisor and the Acting MDO concerning this incident. On his formal
complaint, complainant did not explain his claim of discrimination but
rather referred to the definition of claims in his informal complaint.
The record also contains a copy of the EEO Counselor's Report which
defines the issue raised by complainant as: on October 16, 1998,
complainant was denied light duty and told to go see his doctor.
The Counselor's Report notes that complainant filled out a PS Form 3971,
for 40 hours due to the time requirements to get an appointment to see
his doctor and states that some portions of complainant's complaint
are untimely.
Upon review of the record, the Commission finds that the agency
improperly defined the claims raised by the complainant in his March
4, 1999 complaint. The Commission finds that complainant alleged that
based on his disability (Disabled Veteran) the agency subjected him to
harassment when:
On October 16, 1998, Person A denied complainant's request for light
duty and told him to fill out a PS Form 3971 and to go see his doctor;
The ACO lost complainant's PS Form 3971 requesting leave under the FMLA;
In November 1998, Person A accused complainant of filing a fraudulent
CA-2 form which resulted in complainant receiving �a grilling� from his
supervisor and the Acting MDO; and
On December 4, 1998, the ACO wrote complainant up for failure to maintain
a proper work schedule.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 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 a continuing violation,
that is, a series of related discriminatory acts, one of which falls
within the time period for contacting an EEO Counselor.
We find that complainant has established a continuing violation.
Complainant maintained that all of his claims were the result of Person A
and the ACO harassing him with regard to his time and attendance following
the denial of his request for light duty. Thus, he provided the common
nexus or theme. We also find incident (4), which was timely raised with
an EEO Counselor, is connected with complainant's untimely incidents by
his claim that the actions were taken against him as part of a pattern of
continuing harassment. Thus, we find that complainant timely contacted
an EEO Counselor on December 16, 1998, inasmuch as we find his complaint
sets forth a continuing violation. See Howard-Grayson v. United States
Postal Service, EEOC Request No. 05990160 (December 3, 1999).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 24, 2001
__________________
Date