01992296_r
11-04-1999
Ronald McCray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald McCray, )
Appellant, )
)
v. ) Appeal No. 01992296
) Agency No. 1-C-151-0110-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 issued on December
24, 1998. The appeal was postmarked January 25, 1999. 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.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of the first allegation of appellant's complaint on the grounds that
appellant failed to contact an EEO Counselor in a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on May 27, 1998.
On August 21, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his race
(black) and in reprisal for his previous EEO activity when:
1. Since approximately 1994, appellant has been subjected to a hostile
work environment in the form of being looked down upon and subjected to
jokes by coworkers.
2. On May 21, 1998, appellant received a Notice of Suspension of 14
days or less.
In its final decision, the agency dismissed the portion of allegation
1 that covers the period of 1994 through April 12, 1998, on the grounds
of failure to contact an EEO Counselor in a timely manner. The agency
determined with regard to this portion of allegation 1 that appellant's
EEO contact on May 28, 1998, was after the expiration of the 45-day
limitation period. The agency further determined that appellant failed
to provide evidence to justify extending the time limits. Allegation 2
and the portion of allegation 1 alleging discrimination since April 13,
1998 were accepted for investigation.
On appeal, appellant indicates that his complaint sets forth a continuing
violation. Appellant argues that agency management has continuously
discriminated and retaliated against him since May 1993.
ANALYSIS AND FINDINGS
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 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or the
Commission shall extend the 45-day time limit when the individual shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by circumstances beyond his
or her 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 McGovern 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).
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).
In the present case, appellant alleges in allegation 1 that he was
subjected to a hostile work environment. The incident accepted
for investigation in allegation 2 concerns the issuance of a Notice
of Suspension to appellant in May 1998. The incidents set forth in
appellant's complaint allegedly occurred in the period of 1994 through
July 1998. Appellant initiated contact with an EEO Counselor on May 27,
1998.<2> Allegation 2 and the portion of allegation 1 that involves
incidents that allegedly occurred since April 13, 1998, were accepted
for investigation. We find that the issue of a continuing violation
needs to be addressed. It is well-settled that where, as here, there
is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination
as to timeliness." Williams v. Department of Defense, EEOC Request
No. 05920506 (August 25, 1992). Moreover, where, as here, a complainant
alleges "recurring incidents" of discrimination, "an agency is obligated
to initiate an inquiry into whether any allegations untimely raised fall
within the ambit of the continuing violation theory." Guy v. Department of
Energy, EEOC Request No. 05930703 (December 16, 1993) (citing Williams).
As the Commission further held in Williams, where an agency's final
decision fails to address the issue of continuing violation, the complaint
"must be remanded for consideration of this question and issuance of a new
final agency decision making a specific determination under the continuing
violation theory." Accordingly, the agency's decision to dismiss the
aforementioned portion of allegation 1 of appellant's complaint on the
grounds of untimely EEO contact is VACATED. This portion of allegation
1 is hereby REMANDED to the agency for a determination regarding whether
a continuing violation has been established.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation into whether
appellant has established a continuing violation.
Thereafter, the agency shall decide whether to process or dismiss the
portion of allegation 1 of appellant's complaint involving incidents
that allegedly occurred during the period of 1994 through April 12, 1998.
29 C.F.R. �1614.106 et seq. The supplemental investigation and issuance
of the notice of processing and/or final decision must be completed
within thirty (30) calendar days of the date this decision becomes final.
A copy of the final decision and/or notice of processing must be submitted
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:
November 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The record does not establish when
appellant received the final agency decision. Absent evidence to
the contrary, we find that the instant appeal was timely filed.
2 In its final decision, the agency stated that appellant initiated
contact with an EEO Counselor on May 28, 1998; however, in the EEO
Counselor's report, appellant's initial contact date is recorded as May
27, 1998.