01982331
03-17-1999
Elaine Trang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Elaine Trang, )
Appellant, )
)
v. ) Appeal No. 01982331
) Agency No. 1F-941-0131-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
______________________________)
DECISION
On January 12, 1998, appellant filed a timely appeal with this Commission
from an amended final agency decision (FAD) concerning her complaint of
unlawful employment discrimination in violation of Title VII. In her
complaint, appellant alleged that she was subjected to a continuing
pattern of discrimination on the basis of race (Asian/�Chinese�), religion
(Buddhist) and national origin (Vietnamese) when:
She was not allowed to take annual leave on February 7, 1997;
She was allegedly harassed when she was placed in the 030 unit on May 6,
1997; and
She was issued a Letter of Warning on June 2, 1997.
The agency dismissed allegations (1) and (2) pursuant to EEOC Regulation
29 C.F.R. � 1614.107(b), for failure to comply with the applicable
time limits contained in 29 C.F.R. � 1614.105(1). The agency accepted
allegation (3) for investigation.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an EEO 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.
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.
The record establishes that appellant was denied annual leave on
February 7, 1997, and was placed in the 030 unit on May 6, 1997.
Appellant initially contacted an EEO counselor on July 6, 1997. In order
to comply with the applicable time limitations contained in 29 C.F.R. �
1614.105(1), appellant should have contacted an EEO counselor by March
24, 1997 in regard to the denial of annual leave and by June 20, 1997
in regard to placement in the 030 unit. In its amended FAD, the agency
found that appellant was or should have been aware of the time limits for
contacting an EEO counselor because EEO posters, on display at appellant's
place of work, provided notice to employees regarding the specific time
limits for contacting an EEO counselor. The agency supplemented the
record with a copy of the EEO poster and a list of the eight areas in
the building where the posters have been displayed since April 1996.
Although appellant has not provided the agency or the Commission with
an explanation for her failure to timely contact an EEO counselor
concerning allegations (1) and (2), appellant states in her complaint
that the alleged incidents constitute a pattern of discriminatory
actions on the part of her supervisor. The Commission has held that
the time requirements for initiating EEO counseling 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.
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). In the instant case, appellant initiated timely contact with an
EEO counselor regarding receipt of the Letter of Warning. Therefore, we
must determine whether the agency properly considered whether allegations
(1) and/or (2) constitute part of a continuing violation.
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). Furthermore, 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, appellant's supervisor was involved in each of the
three alleged discriminatory incidents which occurred between February
1997 and June 1997. Furthermore, appellant's assignment to the 030
unit on May 6, 1997 and receipt of a Letter of Warning on June 2, 1997
resulted from her May 2, 1997 on the job accident. We therefore find
that appellant has demonstrated that allegations (1) and (2) are part
of a continuing violation in connection with allegation (3) which was
timely raised. Accordingly, we find that the agency improperly dismissed
these two allegations for untimely EEO counselor contact.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby VACATED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
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 (R0993)
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. 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:
March 17, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations