01977060_r
03-24-1999
Betty Briggs, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Betty Briggs, )
Appellant, )
)
v. ) Appeal Nos. 01976417
) 01977060
William J. Henderson, ) Agency Nos. 4C-170-0023-97
Postmaster General, ) 4C-170-0039-97
United States Postal Service, )
Agency. )
______________________________)
DECISION
Pursuant to EEOC Regulation 29 C.F.R. �1614.606, the Commission hereby
consolidates the above-referenced complaints for decision on appeal.
On August 21, 1997, and September 27, 1997, appellant filed timely
appeals with this Commission from final agency decisions (FADs) dated
July 21, 1997, and August 26, 1997, pertaining to her complaints 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. Based on a review of both records, it appears
that appellant alleged that she was subjected to discrimination on the
bases of color (Brown), religion (not specified), sex (female), and age
(DOB 1/13/43) when:
On unspecified dates appellant was threatened with being fired and on
April 12, 1997, she was threatened with not being paid;
On unspecified dates appellant was issued an increased number of
write-ups;
On unspecified dates appellant's customers were encouraged to fill out
form complaints against appellant despite their desire not to do so,
and co-workers made derogatory statements about appellant's work and
her state of mind to customers on appellant's route;
On April 11, 1997, appellant was humiliated in front of a restaurant
full of people by being accosted while on break;
On an unspecified date appellant's request for needed medical attention
was denied or hindered;
Management failed to properly respond to complaints of harassment
appellant raised concerning a particular co-worker who had twice
assaulted her, the last incident occurring on December 20, 1996, when
appellant was sprayed in the face with de-icer;
In January 1997, and on March 28, 1997, appellant was denied training;
On March 6, 1997, management threatened one of appellant's sons with
charges when he called appellant at work during an apparent emergency;
On March 6, 1997, appellant was stalked, her arm was grabbed, and papers
were snatched from her hands;
On April 11, 1997, appellant was denied leave for medical and/or
religious reasons; and
On April 12, 1997, appellant was denied training opportunities.
BACKGROUND
Agency No. 4C-170-0023-97
On March 17, 1997, appellant initiated contact with an EEO Counselor
concerning her complaint of unlawful employment discrimination.
Counseling proved to be unsuccessful, and on April 24, 1997, appellant
filed a formal complaint in which she raised the matters identified in
allegations (1) through (8). On May 5, 1997, the agency sent appellant
a letter informing her that although she raised additional allegations of
discrimination in her formal complaint, the agency provided her counseling
only for allegation (6). Additionally, the agency informed appellant
that due to the vagueness of the other issues she raised, they would
not be included in her complaint, and instead she was asked to provide
the agency with additional information concerning those allegations
within ten (10) days of her receipt of the letter. The record shows
that appellant responded to the letter and received counseling on the
issues during the processing of Agency No. 4C-170-0039-97.
On June 9, 1997, the agency sent appellant another letter indicating
that the scope of her complaint would be limited to the only allegation
for which she received counseling, allegation (6).
Notwithstanding the representations made in both of these letters, on
July 21, 1997, the agency issued a FAD for Agency No. 4C-170-0023-97
including all of the additional allegations appellant raised, and
determined that they all occurred on or before December 20, 1996. Based
on that determination, the agency dismissed allegations (1) through (8)
pursuant to 29 C.F.R. �1614.107(b), for failure to initiate contact with
an EEO Counselor in a timely manner. Specifically, the agency concluded
that appellant's March 17, 1997 initial EEO Counselor contact occurred
more than forty-five (45) days from the dates on which the incidents of
alleged discrimination took place, and was, therefore, untimely.
Agency No. 4C-170-0039-97
The agency identified March 17, 1997, as the date of initial EEO Counselor
contact. On June 20, 1997, the agency issued appellant a notice of final
interview, identifying as the matters which were counseled, allegations
(1) through (5), (7), and (8). The record reveals that appellant received
the notice of final interview on June 21, 1997, and on July 8, 1997, she
filed a formal complaint identifying only allegations (9) through (11).
On August 26, 1997, the agency issued a FAD identifying only allegations
(9) through (11), and dismissed them pursuant to 29 C.F.R. �1614.107(b),
for failure to file a formal complaint in a timely manner. Specifically,
the agency determined that appellant filed her formal complaint on July
8, 1997, more than fifteen (15) days from the June 21, 1997 notice of
final interview.
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 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 time limitation 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 she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, we find that the agency erred in its determination
that the incidents identified in allegations (1) through (8) all
occurred on or before December 20, 1996. First, we note that the
agency, itself, in conjunction with the counseling provided appellant for
Agency No. 4C-170-0039-97, placed the particular dates of the incidents
identified in allegations (1), (4), (7), and (8) as occurring on April 12,
1997, April 11, 1997, March 28, 1997, and March 6, 1997, respectively.
As appellant's March 17, 1997 initial EEO Counselor contact either
pre-dated, or occurred within forty-five (45) days of the dates on which
these incidents took place, we find that the agency improperly dismissed
allegations (1), (4), (7), and (8) for untimely EEO Counselor contact.
A careful reading of the record discloses that in allegation (6),
appellant alleged that management failed to properly respond to
incidents of alleged harassment perpetrated by a co-worker, the last
of which occurring on December 20, 1996. As the crux of appellant's
complaint concerns management's lack of response to these incidents of
harassment, we find that the agency erred in tolling the forty-five (45)
day limitation period from the date of the last incident. In effect,
appellant alleges that the agency continues to discriminate against her
as long as it fails to address her concerns. As this allegation raises
a recurring violation, we find that the agency erred by dismissing it
as untimely.
With regard to allegations (2), (3), and (5), we find that there
is insufficient information in the record to make a determination
as to whether appellant timely initiated EEO Counselor contact.
EEOC Regulation 29 C.F.R. �1614.106(c) requires that formal complaints
contain a statement which is sufficiently precise to describe generally
the actions or practices that form the basis of the complaint. In the
present case, we find that appellant failed to identify with sufficient
precision the dates on which these incidents of alleged discrimination
occurred. However, we have consistently held that the agency bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. See Williams v. Department of Defense,
EEOC Request No. 05920506 (August 25, 1992); Gens v. Department of
Defense, EEOC Request No. 05910837 (January 31, 1992). With regard to
these allegations, we find that the agency failed to meet that burden.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which fails to
comply with the applicable time limits contained in 29 C.F.R. �1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so. In the instant
complaint, the record reveals that appellant received her notice of the
right to file a formal complaint on June 21, 1997, but did not file her
formal complaint until July 8, 1997, beyond the 15-day limitation period.
As appellant provided no justification sufficient to extend the applicable
time limit, we find that the agency's decision to dismiss allegations
(9) through (11) was proper.
CONCLUSION
Accordingly, the agency's decision to dismiss allegations (9) through (11)
is AFFIRMED for the reasons set forth herein. The agency's decision to
dismiss allegations (1), (4), and (6) through (8) is hereby REVERSED.
The agency's decision to dismiss allegations (2), (3), and (5) is
hereby VACATED. Allegations (1) through (8) are further REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall send appellant a letter requesting relevant information,
including dates and the individuals involved, concerning allegations (2),
(3), and (5). The letter shall inform appellant that she has fifteen
(15) calendar days from receipt in which to provide the agency with the
information requested or her allegations could be dismissed pursuant to
29 C.F.R. �1614.107(g);
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall acknowledge to the appellant that it has received
the remanded allegations, and issue a new FAD and/or notice of processing
concerning allegations (2), (3), and (5); and
The agency is ORDERED to process the remanded allegations (1), (4),
and (6)-(8) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded allegations
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 regarding allegations (1),
(4), and (6)-(8), a copy of the notice that transmits the investigative
file and notice of rights regarding allegations (1), (4), and (6)-(8), and
a copy of the letter requesting additional information on allegations (2),
(3), and (5) 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:
March 24, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations