Nhung D. Stets, Appellant,v.William J. Henderson, Postmaster General, U. S. Postal Service, Agency

Equal Employment Opportunity CommissionApr 20, 1999
01981853 (E.E.O.C. Apr. 20, 1999)

01981853

04-20-1999

Nhung D. Stets, Appellant, v. William J. Henderson, Postmaster General, U. S. Postal Service, Agency


Nhung D. Stets v. U. S. Postal Service

01981853

April 20, 1999

Nhung D. Stets, )

Appellant, )

) Appeal No. 01981853

v. ) Agency No. 1K-222-0003-98

)

William J. Henderson, )

Postmaster General, )

U. S. Postal Service, )

Agency )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision 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. The final agency decision was dated December

22, 1997. The appeal was postmarked January 5, 1998. 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.

ISSUES PRESENTED

The issues on appeal are: 1) whether the agency properly dismissed one

of the allegations in appellant's complaint for untimely EEO contact;

and 2) whether the agency properly dismissed another allegation for

failure to state a claim.

BACKGROUND

Appellant filed a formal complaint of discrimination on November 28,

1997, alleging discrimination on the bases of race (Vietnamese),

national origin (Vietnamese), color (unspecified) and sex (female).

Her complaint had four allegations of discrimination:

1) on August 21, 1997, and ongoing, her supervisor harassed her by yelling

at her, pointing his finger at her and giving her time deadlines that

he gave to no one else;

2) on September 25, 1997, management failed to take the proper corrective

action when the appellant received a letter from her supervisor that was

supposed to be an apology but which appellant says was not truthful and

in which she says the supervisor did not take responsibility for his

actions;

3) on October 26, 1997, appellant was harassed by her supervisor when he

directed her to operate a postal machine without proper preparation; and,

4) on September 19, 1997, her supervisor gave her unrealistic processing

deadlines which he did not give to other employees.

In its final agency decision, the agency accepted allegations 3 and

4 for processing and dismissed allegations 1 and 2. Allegation 1 was

dismissed on the grounds that appellant had failed to timely contact an

EEO Counselor. The appellant first contacted an EEO Counselor on October

10, 1997, which was 50 days after the date of allegation 1, August

21, 1997. The agency did not consider the question of a continuing

violation with respect to the timeliness of appellant's allegation.

Allegation 2 was dismissed for failure to state a claim for which relief

could be granted, in that the appellant had not claimed any direct harm

and was not an aggrieved employee. This appeal followed.

On appeal, appellant claims that allegations 1 and 2 should not be

dismissed because she is alleging a continuing violation and that

each of these incidents go toward showing a pattern of discrimination.

The agency statement in response to appellant's appeal argues that in

reference to allegation 1, the dismissal should be upheld because there

were EEO Posters on display in the postal facility where appellant worked

that clearly stated the 45 day limit for contacting an EEO Counselor.

It did not address the issue of a continuing violation. In reference to

allegation 2, the agency maintains its position that appellant suffered

no personal loss or harm with respect to a term, condition or privilege

of employment such that she would be aggrieved.

ANALYSIS AND FINDINGS

Allegation 1

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within 45 days of the

date of the matter alleged to be discriminatory or within 45 days of the

effective date of the personnel action. 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. See McGivern v. USPS, EEOC Request No. 05901150 (December

28, 1990). If one or more of the acts falls within the 45-day period

for contacting an EEO Counselor, the complaint is timely with regard to

all that constitute a continuing violation. See Valentino v. USPS, 674

F.2d 56, 65 (D.C. Cir. 1982); Verkennes v. Department of Defense, EEOC

Request No. 05900700 (September 21, 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, 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). 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 the 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).

In the instant case, we find that appellant has established a continuing

violation with respect to the timeliness of allegation 1. The same agency

official was involved with allegation 1 as with allegations 3 and 4.

The nature of the alleged harassment was such that it was likely to be

recurring, and it was not a discrete act such as a demotion or letter

of discipline that would have clearly signaled to appellant that her

rights were being violated. The agency is ordered to process allegation

1 along with allegations 3 and 4. Therefore, the decision of the agency

with respect to allegation 1 is vacated and is remanded for further

processing.

Allegation 2

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency

shall dismiss a complaint which fails to state a claim pursuant to 29

C.F.R. �1614.103. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or

loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (Apr. 21, 1994). To establish that she is an

"aggrieved employee" and therefore state a claim under the regulations,

a complainant must allege that she was injured in fact.

In this case, appellant alleged that management failed to take the

proper corrective action when the appellant received a letter from

her supervisor that was supposed to be an apology but which appellant

says was not truthful and in which she says the supervisor did not take

responsibility for his actions. Following the incident on August 21,

1997, in which the appellant claims that her supervisor harassed her

by yelling and pointing his finger at her, appellant filed a grievance.

Through the grievance process, a resolution to the matter was reached in

which the supervisor was to issue a written apology to appellant over

the incident. The record reveals that the supervisor did technically

issue the written apology to appellant, although the tone of letter

is somewhat lacking in sincerity. Appellant has not suffered a harm

or loss to a term, condition or privilege of her employment from the

letter, and therefore is not aggrieved. This incident, however, should

be investigated as background information to appellant's claim of a

continuing violation, which is in the nature of a claim of harassment.

Accordingly, the decision of the agency with respect to allegation 1 is

VACATED and is REMANDED for further processing in accordance with this

decision and the proper regulations. The agency decision regarding

allegation 2 was proper and is AFFIRMED.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall also investigate, as

background information relevant to appellant's claim, allegation 2.

The agency shall acknowledge to the appellant that it has received

the remanded allegation 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 acknowledgement 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 cir-cumstances

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. 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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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:

April 20, 1999

______________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations