01974289_r
06-10-1999
Reginald B. Byrd, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Reginald B. Byrd, )
Appellant, )
) Appeal No. 01974289
v. ) Agency No. 1K-221-0001-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On May 7, 1997, appellant filed a timely appeal of the April 10, 1997
final agency decision which dismissed six allegations of his complaint
for failure to contact an EEO Counselor in a timely manner and one
allegation for failure to state a claim.
The agency framed the allegations of appellant's complaint as whether
appellant was discriminated against on the bases of race (Negro), color
(Black), sex (male), age (December 18, 1942), physical disability (lower
back), and in retaliation for prior EEO activity when:
1. In March 1995, he was given a temporary job offer after having back
surgery;
2. In May 1995, he was given a temporary job offer;
3. In November 1995, he received a letter from the Manager of Distribution
Operations concerning his inability to perform his job;
4. In January 1996, since bidding on a job assignment, a fellow employee
was not asked to perform a job function;
5. In April 1996, the wrong medical form was sent to his medical doctor;
6. In July 1996, he was harassed by the Manager of Distribution Operations
when his privacy was violated; and
7. He refused to sign a modified job offer issued to him on September 6,
1996, because the information was incorrect.
In dismissing allegations 1 to 6 for untimely EEO Counselor contact,
the agency noted that appellant failed to contact an EEO Counselor
within 45 days of the alleged discrimination. Regarding its dismissal
of allegation 7 for failure to state a claim, the agency stated that
appellant failed to demonstrate that he suffered a harm and that the
modified job offer was based upon a second medical opinion requested by
the U.S. Department of Labor (DOL) and that the DOL doctor reviewed and
approved the modified offer.
The Counselor's Report reveals that appellant alleged that: 1) he was
asked to sign an August 6, 1996 permanent modified job offer on September
4, 1996 by his supervisor and that he refused to sign it because the
information on the offer was incorrect and conflicted with medical
restrictions imposed by his doctor; 2) he was harassed by the Manager of
Distribution Operations (MDO-1)on July 16, 1996, and his supervisor on
unspecified dates regarding his disability and that a light duty employee
who is white was not harassed; and 3) he received a September 6, 1996
letter with false information from an EEO Senior Specialist concerning
another EEO complaint. As a remedy, appellant requested a modified job
offer within his restrictions and that the MDO-1 and his supervisor stop
harassing him.
In his Information for Precomplaint Counseling, appellant alleged that:
1) management continued to harass him; 2) on September 4, 1996, he was
given a false modified offer; and 3) an EEO official had given him a
false letter, dated September 6, 1996. Appellant noted therein that
the violation was continuing.
In his complaint, appellant specifically alleged as follows:
1) 9/6/96 modified job offer lied to by management. 2) July/96 harassment
by [MDO-1] and violation of privacy. 3) April 1996 letter to go to
doctor from Labor Department. Wrong medical form sent to doctor. 4)
[from] Jan 1996 since bidding job assignment, fellow employee has not been
ask[ed] to perform job function, i.e. [Person A]. 5) Nov 1995 letter from
[MDO-2], inability to perform job. 6) May 1995 temporary job offer. 7)
temporary job offer after surgery (Mar. 1995).
The record contains a July 19, 1996 letter from appellant to the Plant
Manager wherein appellant stated that on July 16, 1996, MDO-1 approached
him in the presence of other employees and in a loud and rude voice
asked him whether he had a bid on a level six job or was he not currently
working. The MDO-1 also told appellant that he was not going to hold a
level six job and not be able to perform the duties and stated that she
was going to take his job. The letter also reflects that he informed
MDO-1 that he had surgery and was on light duty. After calming down,
appellant went to his supervisor and informed him of the incident and
reported that he was not going to be harassed by any member of management
and that he had a medical reason for his duties.
On appeal, appellant asserts that he was harassed by management and that
the EEO Counselor omitted the issue regarding his supervisor's lying on
a CA-1 [Federal Employee's Traumatic Injury and Claim for Continuation of
Pay/Compensation] which was sent to DOL. Appellant's appeal reflects
that after returning to work from back surgery, he was informed by
MDO-2 in March 1995, that he had to accept a temporary limited job.
Appellant refused the job because of medical restrictions. In May 1995,
appellant accepted a modified job offer but had to perform a variety
of duties and re-injured himself. Appellant's appeal further reflects
that in July 1995, he started working his "assigned bid" with limitations
and experienced a recurrence. In June 1996, appellant was confronted by
his supervisor about his not working all the functions of his job bid.
Appellant's appeal also reflects that in September 1996, appellant's
supervisor presented him with a modified job offer which he refused to
sign because it violated his medical restrictions and that he learned
on September 6, 1996, that his supervisor had lied on the CA-1.
As an initial matter, the Commission finds that the agency not
only misdefined appellant's complaint but also failed to clarify the
allegations raised therein.<1> Appellant's formal and informal complaints
reflect appellant's allegation that management was harassing him.
The Commission also finds that the allegations as identified by the agency
are unclear and misdefined. Accordingly, upon review of the record as
a whole, the following allegations are clarified and redefined as follows:
1. In March 1995, the modified job offer made by the agency which
appellant rejected failed to accommodate his disability.
2. A May 1995 modified job offer which appellant accepted failed to
accommodate his disability.
3. In November 1995, appellant was harassed by MDO-2 in a letter
concerning his inability to perform his duties.
4. In June 1996, appellant was harassed when he was confronted by his
supervisor about not performing all of the functions of his job while
another employee, Person A, was not treated in the same manner.
6. On July 16, 1996, the following occurred: a) appellant was harassed
by MDO-1 when he was confronted by her in front of other employees about
his medical condition, and b) the MDO-1's actions violated his privacy.
7. On September 6, 1996, the modified job offer made by the agency which
appellant rejected failed to accommodate his disability.
Failure to state a claim
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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,
sex, 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 (April 21, 1994).
In allegation 6b, appellant is alleging that the Privacy Act was violated.
The Commission notes that an alleged violation of the Privacy Act is
outside the purview of the EEO process. See Bucci v. Department of
Education, EEOC Request No. 05890289 (April 12, 1989). Accordingly,
allegation 6b does not state a claim.
The Commission finds that the agency improperly dismissed allegation 7
since the agency's alleged failure to accommodate appellant's alleged
disability affects a term, condition, and privilege of appellant's
employment. The agency's explanation in the final agency decision
regarding the modified job offer pertains to the ultimate merits of
the allegation.
Untimely EEO contact
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within 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) permits the time period to be extended under
certain circumstances and 29 C.F.R. �1614.604(c) provides that the
time limits in Part 1614 are subject to waiver, estoppel and equitable
tolling. Although time limitations are subject to waiver, estoppel and
equitable tolling, complainants are required to act with due diligence
in pursuit of their claims. See Sapp v. U.S. Postal Service, EEOC
Request No. 05950666 (May 31, 1996); Jenkins v. Department of the Army;
EEOC Request No. 05940721 (January 26, 1996); O'Dell v. Department of
Health and Human Services, EEOC Request No. 05901130 (December 27, 1990).
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 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). 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).
Further, 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). It is necessary to distinguish between
appellants who believe they had been subjected to discrimination, and
therefore had the obligation to file promptly or lose their claims,
versus appellants who are unable to appreciate that they are being
discriminated against until they have lived through a series of acts and
are thereby able to perceive the overall discriminatory pattern. See
Hagen v. Department of Veterans Affairs, EEOC Request No. 05920709
(January 7, 1993).
Incidents that are sufficiently distinct to trigger the running
of the limitations period do not constitute continuing violations.
See Miller v. Shawmut Bank, 726 F.Supp. 331, 341 (D. Mass. 1989);
Cogen v. Milton Bradley Co./Hasbro Inc., 49 Empl. Prac. Dec. (CCH)
�38,894 (D. Mass. 1989). In Cogen the court stated that "discrete acts
of discrimination taking place at identifiable points in time" are not
continuing violations for the purposes of extending the time limitations
period. Id. at 58,757.
Upon review, we find that the agency's dismissal of allegations 1 to 5
and 6a for untimely EEO contact was proper. Appellant does not argue
that he was unaware of the time period to initiate EEO Counselor contact.
It is also undisputed, and the Commission finds based on the Counselor's
Report, that appellant did not initiate Counselor contact until September
11, 1996. Allegations 1 to 5 and 6a, therefore, occurred beyond the
45 days required for timely contact and appellant has not provided
justification sufficient to extend the time period.
Although allegation 7 occurred within 45 days of appellant's EEO contact,
the Commission finds that no continuing violation exists.<2> While all
of the allegations appear related to appellant's alleged disability, the
Commission finds that allegations 1 to 5 and 6a are not sufficiently
connected to allegation 7, but were separate and discrete events
which occurred at specific points in time and should have given rise
to a reasonable suspicion on the part of appellant that he was being
discriminated against at the time of their occurrence. Moreover, as
evidenced by appellant's July 19, 1996 letter to the Plant Manager,
appellant knew that he was being harassed at least by July 16, 1996,
and therefore should have contacted an EEO Counselor regarding the
allegations within 45 days of that date.
As a final matter, the Commission notes that appellant argues that
the agency failed to address the issue of his supervisor allegedly
lying on a CA-1. Failure to address an allegation is tantamount to
a dismissal of the matter. See Kapp v. Department of the Navy, EEOC
Request No. 05940662 (January 23, 1995). Upon review, it does not
appear that appellant raised the allegation in his complaint and it
does not appear as one of the issues that appellant identified in his
Information for Precomplaint Counseling which he himself submitted.
Even if it were raised, the allegation does not state a claim.
Appellant has not shown how he was harmed by the alleged lie. Moreover,
we note that the Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22,
1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June
24, 1993). The proper forum for a complainant to raise challenges to
actions which occurred during the processing of his Office of Workers'
Compensation Programs (OWCP) claims are at those proceedings themselves.
It is inappropriate to attempt to use the EEO process to collaterally
attack actions which occurred during the processing of an OWCP claim.
Consistent with the foregoing discussion, the agency's dismissal of
allegation 7 is REVERSED and allegation 7 is REMANDED to the agency for
further processing. The agency's dismissal of allegations 1 to 5 and
6a and 6b is AFFIRMED.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. 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 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. 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:
June 10, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operation1The Commission
reminds the agency that in its final
decisions, issues should be clearly
defined. EEO Management Directive
110, Chap. 2, III (October 22, 1992)
provides that at the counseling stage,
the EEO Counselor must be certain that
the complainant's issues are clearly
defined and that the complainant agrees
on what issues are to be the subject
of the inquiry. In cases in which the
Commission cannot determine what was
being alleged in the complaint, the
Commission has remanded the complaint
back to the agency so that appellant
could meet again with an EEO Counselor in
order that an agreement could be reached
on the issues in appellant's complaint.
See Smith v. U.S. Postal Service, EEOC
Request No. 05921017 (April 15, 1993).
2Although appellant's complaint clearly reflects that he was raising the
continuing violation theory, the agency failed to address this issue.
See Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). In dismissing a complaint, the agency has an obligation
to issue its decisions in a manner deemed "consistent with acceptable
legal standards." 29 C.F.R. 1614.104(b); Delalat v. Secretary of the
Navy, EEOC Appeal No. 01963847 (February 11, 1997). Nonetheless, the
record is sufficient for the Commission to address the issue despite
the agency's failure to do what was required.