01984988
06-30-1999
Robert P. DesRoches, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert P. DesRoches v. United States Postal Service
01984988
June 30, 1999
Robert P. DesRoches, )
Appellant, )
)
v. ) Appeal No. 01984988
) Agency No. 4-B-030-0011-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On March 26, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 28, 1998, pertaining
to his complaint of unlawful employment discrimination in violation
of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. In his complaint, appellant alleged that he was subjected to
discrimination on the basis of physical disability when:
The agency and the Office of Workers' Compensation Programs (OWCP)
delayed the processing of appellant's leave buy back until pay period
04-96 (February 23, 1996), which was after appellant's removal date of
June 10, 1995;
Appellant was issued an outstanding invoice in the amount of $800.00
for appellant's 1996 Flexible Spending Account; and
On December 5, 1997, appellant received a Notification of Personnel
Action (PS Form 50) which indicated that the effective date of
appellant's removal was December 17, 1996.
The agency dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant initially contacted an EEO Counselor
concerning his allegations on December 10, 1997. The agency dismissed
allegation (2) pursuant to EEOC Regulation 29 C.F.R. �1614.107(e), for
being moot. Herein, the agency found that the invoice was canceled on
September 24, 1997. The agency also dismissed allegation (3) pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
The agency found that appellant failed to establish how he was aggrieved
by the incident raised in allegation (3).
On appeal, appellant argues that although he failed to contact a counselor
until December 10, 1997, he did not receive his Form 50 until December
5, 1997, and that therefore his complaint was timely. Appellant further
argues that he should be paid for any remaining sick leave accrued before
his date of separation.
In response, the agency notes that appellant is attempting to establish
a nexus between appellant's receipt of his Form 50 and his other
allegations. The agency argues, however, that appellant was aware of
the delay in processing his leave buy back on pay period 14 of 1994.
Regarding allegation (3), the agency argues that appellant was not
aggrieved because he is not entitled to payment for accrued sick leave --
the agency is prohibited by regulation from paying separated employees
for their sick leave. The agency also submitted a copy of the September
24, 1997 correspondence that canceled the $800.00 invoice.
A review of the record reveals that appellant failed to request
compensatory damages in his formal complaint, dated March 26, 1998.
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 Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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 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. United States Postal
Service, EEOC Request No. 05901150 (Dec. 28, 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); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (Sept. 21, 1990); Maldonado v. Department of the Interior,
EEOC Request No. 05900937 (Oct. 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 (Oct. 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.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997); see Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he
had been subjected to discrimination had an obligation to file promptly
with the EEOC or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive an overall discriminatory pattern).
In its final decision, the agency failed to consider the question
of a continuing violation. The Commission has held that where the
agency has failed to consider this issue, the case must be remanded for
consideration of the issue of a continuing violation and issuance of a new
FAD making a specific determination under the continuing violation theory.
Guy v. Department of Energy, EEOC Request No. 05930703 (Jan. 4, 1994).
However, on appeal, the agency argues that appellant's complaint does not
constitute a continuing violation. Though the agency did not address the
issue of continuing violation in its FAD, we find that it would be futile
to remand appellant's complaint for consideration of this issue, as it
has been addressed by the agency on appeal. Therefore, we will determine
whether the dismissed allegations constitute a continuing violation.
The Commission finds that appellant did not contact a counselor until
December 10, 1997, but received his amended leave statement on February
23, 1996, more than forty-five (45) days prior to his contact. Further,
the Commission finds that appellant was aware of, or had suspicion of,
discrimination in the delay of his leave buy back on or before the date
he received his amended statement on February 23, 1996. Therefore,
appellant had an obligation to contact a counselor regarding allegation
(1) within forty-five (45) days of the incident. See Sabree v. United
Brotherhood of Carpenters and Joiners Local No. 33, 921 F.2d 396 (1st
Cir. 1990). Therefore, appellant failed to timely raise allegation (1)
with an EEO counselor, and the allegation was not rendered timely under
the continuing violation theory.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant's complaint are moot,
the factfinder must ascertain whether (1) it can be said with assurance
that there is no reasonable expectation that the alleged violation will
recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. See County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
With regard to allegation (2), the Commission finds that the September
24, 1997 cancellation of appellant's Flexible Spending Account invoice
eradicated the effects of the alleged discrimination. Appellant has
been made whole by the agency's cancellation, and because appellant
has not requested compensatory damages, no further remedial finding
is required. Further, the Commission finds no reasonable expectation
that the incident will recur. Accordingly, the agency's dismissal of
allegation (2) was proper.
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).
With respect to allegation (3), appellant claims that he was injured
by not being paid for accrued sick leave as of his date of separation.
After a review of the agency's rationale, it seems that the agency
has addressed the merits of appellant's complaint without a proper
investigation as required by the regulations. We find that the
agency's articulated reason for the action in dispute, i.e., that
appellant was not entitled to payment for accrued sick leave, goes to
the merits of appellant's complaint, and is irrelevant to the procedural
issue of whether he has stated a justiciable claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996); Lee v. USPS, EEOC Request No. 05930220 (Aug. 12, 1993);
Ferrazzoli v. USPS, EEOC Request No. 05910642 (Aug. 15, 1991). Therefore,
the dismissal of allegation (3) is REVERSED.
CONCLUSION
Accordingly, the agency's dismissal of allegations (1) and (2)
is AFFIRMED. The agency's dismissal of allegation (3), however, is
REVERSED, and the allegation is REMANDED for further processing.
ORDER (E1092)
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 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 (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 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. 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 30, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations