01983840_r
04-28-1999
Ronald T. Wallace, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald T. Wallace, )
Appellant, )
)
v. ) Appeal No. 01983840
) Agency No. 1-C-451-0022-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 14, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 17, 1998, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination on the basis of reprisal for appellant's participation
in prior EEO activity when:
On August 10, 1996, the plant manager told appellant to quit speaking to
inspectors about a sexual harassment case, or appellant would be fired;
On August 12, 1996, appellant informed a postal inspector that the
plant manager threatened to fire appellant for speaking with inspectors,
and the inspector told appellant that he would watch the plant manager
for retaliation;
On August 9, 1996, the plant manager told appellant to fire a female
employee (person 1) who was on Family Medical Leave (FMLA); appellant
informed the plant manager that person 1 was on FMLA, but the plant
manager said that if appellant did not fire person 1, appellant would
be fired; there was a witness who notified the postal inspector;
On August 9, 1996, Area Management contacted the plant manager and told
him that he could not terminate person 1; the plant manager came down
on the floor and told appellant that he would see to it that appellant
lost his job;
On March 22, 1995, appellant was off duty due to a heart attack, and
came to the post office to speak to the plant manager about returning
to work; they discussed the Office of Workers' Compensation (OWCP),
finding an inventory position for appellant, and notified the Managers
of Distribution Operations (MDO) of appellant's intentions;
On May 24, 1995, and September 7, 1995, appellant spoke to the MDOs
about a new position and both spoke to the plant manager, who stated
that there was no way he would approve any light duty for appellant;
In early 1996, a fellow employee (person 2) told appellant that while in
a quality circle meeting, person 2 asked the plant manager if appellant
could participate in a project with the group, and the plant manager
told the employee that he was going to fire appellant;
In July 1996, appellant received a phone call from person 1, who said
that she was at appellant's house with the postal inspector, who got on
the phone and asked if it was okay to tap appellant's phone to record
the MDO making threatening phone calls;
On July 30, 1996, another fellow employee (person 3) came to appellant,
and said that person 3 was talking to another female employee (person
4), and that person 4 said that the MDO told her that the MDO holds
appellant, person 1 and another female employee responsible for the
MDO losing his job, and that if the MDO went to jail, at least he would
get three meals a day; appellant notified the postal inspector;
In March 1997, yet another fellow employee (person 5) and appellant
went out to a night club, and when they walked inside, person 5 said
that he saw the MDO in the parking lot, and that they should leave so
there isn't any trouble;
In March 1996, and on June 4, 1996, June 25, 1996, June 26, 1996, June
28, 1996, July 1, 1996, July 2, 1996 and July 3, 1996, statements were
taken by postal inspectors of other employees during the investigation;
On September 4, 1997, another postal employee (person 6) showed up
at appellant's door and said that the MDO called him requesting that
person 6 withdraw his statement; person 6 also said that the MDO was
looking for appellant;
On September 9, 1997, the brake line to appellant's car was cut, which
was verified by the police, and appellant saw the MDO in the area that
day at 4:30 a.m.;
On July 28, 1996, August 9, 1996 and October 3, 1996, the MDO saw
appellant and yelled obscenities as he drove past; the MDO also gave
appellant �the finger� on those occasions;
In July 1995, the MDO asked appellant to take someone to a local bar
so that the MDO could beat him up for messing with his girlfriend;
the girlfriend told the MDO that appellant refused to do it;
On August 14, 1996, the MDO's girlfriend filed an EEO complaint against
appellant, complaining that appellant discriminated against her because
of her connection to the MDO;
On February 8, 1997, the MDO told several people that he was looking
for appellant, and wanted appellant to pay for a lie detector test; and
On August 9, 1996, appellant received threatening phone calls saying
�your next,� after a fellow employee was assaulted and badly beaten
outside a local bar; the call was reported to the postal inspector.
The agency dismissed allegations (1), (2), (3), (4), (5), (6), (7),
(8), (9), (10), (11), (14), (15), (16), (17), and (18) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(b), for untimely counselor contact,
and dismissed allegations (12) and (13) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency found that appellant first contacted a counselor on September
15, 1997, but that all of the allegations dismissed for untimely
counselor contact occurred between six months and two years earlier.
Further, the agency found that appellant provided no evidence that
he was not aware of the time limit for contacting an EEO Counselor,
nor any evidence to persuade the agency to extend the time limit for
initial contact. Regarding allegations (12) and (13), the agency found
that the allegations did not relate to a term, condition, or privilege
of appellant's employment.
On appeal, appellant claims that he contacted the postal inspectors about
various allegations the day that they occurred. Appellant claims that
the harassment he suffered was an ongoing matter, that he was trained to
contact the inspectors about any problems, and that he was not aware that
filing an EEO complaint was an option until he researched the matter.
Appellant further states that he was under doctors orders to have
no contact with the post office because of his heart and emotional
conditions.
Appellant attached medical documents from three practitioners (medical
doctors and psychiatrists) stating that appellant's harassment at work
and contact with the post office exacerbated his heart condition, and
caused appellant's post traumatic stress disorder. Although appellant
took part in the sexual harassment investigation against his MDO and
plant manager, appellant did not testify at the hearing because his
psychiatrist recommended that appellant avoid any further involvement
with the post office, by letter dated July 7, 1997.
The record includes a copy of appellant's Pre-complaint Counseling Form
and Counselor's Report, which note that appellant initially contacted
a counselor on September 15, 1997.
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. USPS,
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. U.S. 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).
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 (Aug. 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 (Dec. 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, since the agency failed to determine
whether allegations (1), (2), (3), (4), (5), (6), (7), (8), (9), (10),
(11), (14), (15), (16), (17) and (18) constitute a continuing violation,
these allegations must be remanded to the agency for such a determination.
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 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
We find that since appellant is alleging that he was subjected to
harassment, a determination regarding whether allegations (12) and (13)
state a claim cannot be made until the continuing violation determination
is made regarding the other allegations in appellant's complaint.
All of appellant's allegations must be considered together in the
light most favorable to appellant, to determine whether appellant has
stated a cognizable claim under the EEOC Regulations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November 12,
1993). Accordingly, the agency's decision to dismiss allegations (12)
and (13) are hereby REMANDED for further processing in accordance with
the ORDER below.
CONCLUSION
Accordingly, the agency's decision is VACATED, and appellant's complaint
is REMANDED for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Conduct a supplemental investigation to determine whether allegations
(1)-(11) and (14)-(18) constitute a continuing violation;
In view of the agency's determination regarding the existence of a
continuing violation, the agency shall again determine the acceptability
of allegations (12) and (13);
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue a new final decision and/or notice of processing
regarding all of appellant's allegations.
A copy of the new final decision and/or notice of processing 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:
April 28, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations