05990160
12-03-1999
Pearleen G. Howard-Grayson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region) Agency.
Pearleen G. Howard-Grayson, )
Complainant, ) Request No. 05990160
) Appeal No. 01980582
v. ) Agency No. 4K-220-0086-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region) )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On November 9, 1998, Pearleen G. Howard-Grayson (complainant) timely<1>
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Pearleen G. Howard-Grayson
v. United States Postal Service, EEOC Appeal No. 01980582 (October
8, 1998).<2> EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
64 Fed. Reg. 37644, 37659 (1999)(to be codified and hereinafter referred
to at 29 C.F.R. � 1614.405(b)). The party requesting reconsideration must
demonstrate that: the appellate decision involved a clearly erroneous
interpretation of material fact or law, or the decision will have a
substantial impact on the policies, practices or operations of the
agency. 29 C.F.R � 1614.405(b)(1). For the reasons set forth herein,
complainant's request is granted.
Complainant filed a formal complaint on June 6, 1997, alleging
discrimination based on sex (female) and mental disability (emotional)
when: (1) from November 1995 through July 1996, despite an Office of
Workers' Compensation Programs (�OWCP�) accepted job-related injury,
complainant was subjected to a hostile work environment and harassment
regarding her job performance, causing her to go on Leave Without Pay
(�LWOP�) since approximately July 1996; and (2) on March 5, 1997,
complainant was issued a Notice of Removal. The agency's FAD accepted
Issue 2 for investigation as complainant contacted an EEO Counselor in a
timely manner. However, the agency dismissed as untimely the harassment
allegation in Issue 1, and the portion of complainant's allegation
regarding her placement on LWOP between July 1996 and February 17, 1997,
as she failed to initiate contact with the EEO Counselor within the
forty-five (45) days required by 29 C.F.R. � 1614.105(a)(2). The agency
accepted the portion of the LWOP allegation that fell within forty-five
(45) days of the EEO Counselor contact. On appeal, the Commission found
that as complainant had a reasonable suspicion of discrimination on the
dismissed allegation as early as August 21, 1996, but did not contact
the EEO Counselor regarding her allegation of a hostile work environment
until April 4, 1997, this allegation should be dismissed in its entirety
due to untimely EEO Counselor contact. Howard-Grayson v. United States
Postal Service, EEOC Appeal No. 01980582 (October 8, 1998).
In its initial decision affirming the agency's FAD, the Commission noted
that complainant alleged that allegations (1) and (2) constituted a
continuing violation, but applied the �reasonable suspicion� standard
and concluded that complainant's taking LWOP due to alleged harassment
should have triggered a reasonable suspicion of discrimination such
that she should have contacted an EEO Counselor earlier. Under the
Commission's new regulations, a request for reconsideration will
be granted when a party demonstrates that the appellate decision
involved a clearly erroneous interpretation of material fact or law.
29 C.F.R. � 1614.405(b)(1). While the Commission dismissed allegation
(1) for untimely EEO contact based on its application of the �reasonable
suspicion� standard, the Commission now holds 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. Moreover,
evidence showing complainant had or should have had a reasonable suspicion
of discrimination more than forty-five (45) days prior to initiating
EEO Counselor contact will not preclude acceptance of the overall
claim of ongoing discrimination. Ferguson v. Dept. of Justice, EEOC
Request No. 05970792 (March 30, 1999); Meaney v. Dept. of the Treasury,
EEOC Request No. 05940169 (November 30, 1994); see generally Armstrong
v. Dept. of the Treasury, EEOC Appeal No. 01982573 (June 17, 1999),
req. for reconsideration denied, EEOC Request No. 05990860 (November 5,
1999). If one or more acts falls within the time period for contacting
an EEO Counselor, the complaint is timely with regard to all that
constitute a continuing violation, provided the acts are interrelated
by a common nexus. Meaney, supra; Verkennes v. Dept. of Defense,
EEOC Request No. 05900700 (September 21, 1990). Furthermore, where a
complainant has shown that his or her timely incident is interrelated to
incidents outside the 45 day time limit, the agency should not fragment
complainant's claim by dismissing, under the reasonable suspicion theory,
specific identified incidents outside the 45 day time limitation that
are associated with or connected to the subject matter and temporal
scope of the complaint. Ferguson, supra; Armstrong, supra.
After consideration of the record, we find that complainant has
established a continuing violation. Complainant's allegations are
connected by her claim that the actions were taken against her as part
of a pattern of continuing harassment due to a hostile work environment.
The Commission finds that complainant's allegation (1), which alleges
discriminatory harassment regarding her job performance and which caused
her to go on LWOP for eight months, is clearly linked to timely allegation
(2). In allegation (2), complainant claimed that she received the Notice
of Removal as the direct result of her LWOP status. Therefore, we find
that complainant's allegations are sufficiently interrelated and that
she has alleged a continuing violation. Meaney, supra. As a result,
the Commission finds that the agency made an erroneous interpretation
of law by dismissing complainant's allegation (1) under the reasonable
suspicion theory when there is a common nexus between the incidents
in that allegation and the allegation accepted for investigation.
29 C.F.R. � 1614.405(b)(1). Accordingly, complainant's request for
reconsideration is GRANTED, and the agency's partial dismissal of
allegation (1) is REVERSED.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request meets the criteria of 29 C.F.R. �1614.405(b)(1), and it is the
decision of the Commission to GRANT complainant's request. The decision
of the Commission in Appeal No. 01980582 (October 8, 1998) is REVERSED
and the agency's final decision is MODIFIED. There is no further right
of administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER (E1092)
The agency shall accept and rejoin for processing the following claim
which alleges incidents of continuing harassment:
Whether the agency discriminated against complainant on the bases of
sex and mental disability when: (1) from November 1995 through July
1996, despite an Office of Workers' Compensation Programs accepted
job-related injury, she was subjected to a hostile work environment
and harassment regarding her job performance, ultimately causing her to
go on Leave Without Pay beginning in July of 1996; and (2) on March 5,
1997, complainant was issued a Notice of Removal.
In order to process the rejoined claim, the agency shall initially
ascertain the status of complainant's allegation (2), previously
accepted for investigation by the agency. If that allegation has
been fully investigated and assigned to an EEOC Administrative Judge
for hearing, the agency shall defer to the Administrative Judge
regarding the procedure for processing and hearing the allegations in
the rejoined claim. If allegation (2) is at the investigative stage,
the agency shall consolidate the rejoined claim and investigate both
allegations together. The agency shall issue to complainant a copy of
the investigative file when complete and also shall notify complainant
of the appropriate rights within ninety (90) calendar days of the date
that it receives this decision, 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. The agency shall acknowledge
to the complainant that it has received the remanded claim, including
the previously accepted allegation, within thirty (30) calendar days of
the date that it receives this decision .
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 (K1199)
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 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified as 29 C.F.R. �1614.409).
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:
December 3, 1999
_______________ ___________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________1 Because the record does not reveal when
complainant received the prior decision, we have treated her request
as timely.
2 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.