01982394
03-24-1999
Douglas M. Walker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Douglas M. Walker v. United States Postal Service
01982394
March 24, 1999
Douglas M. Walker, )
Appellant, )
) Appeal No. 01982394
v. ) Agency No. 4-D-290-0015-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 4, 1998, appellant filed a timely appeal of the January 7,
1998 final agency decision dismissing four of five allegations of his
complaint for failure to state a claim and for failure to contact an
EEO Counselor in a timely manner.
The agency framed the allegations of appellant's complaint as whether
appellant was discriminated against on the basis of age when: (1)
on October 27, 1997, he was ordered to clock out and go home; and
subsequently on November 7, 1997, he was issued a letter of warning for
being disrespectful to a supervisor; (2) since November 1996, he has
been denied smoke breaks with his peers; (3) in September 1997, appellant
was threatened to be replaced with a younger substitute; (4) in October
1997, he was accused of falsifying his time records; and (5) since June
1997, his supervisor has turned off the lights while he was working.
The agency accepted allegation (1) of the complaint for investigation.
In dismissing allegations (2) and (5), the agency stated that appellant
failed to contact an EEO Counselor within the requisite 45-day time frame.
Regarding its dismissal of allegations (3) and (4) for failure to state a
claim, the agency stated that appellant failed to show that he was harmed
by the alleged discriminatory actions and, therefore, was not aggrieved.
Failure to state a claim
Upon review, the Commission finds that the agency's dismissal of
allegations (3) and (4) for failure to state a claim was proper.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). The Commission
has held that a remark or comment, unaccompanied by concrete action, is
not a direct and personal deprivation sufficient to render an individual
aggrieved. Banks v. Department of Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995); Fuller v. U.S. Postal Service, EEOC
Request No. 05910324 (May 2, 1991). Appellant has not shown how a term,
condition, or privilege of his employment was affected by the alleged
threat or remark or that any adverse action was taken against him as
a result of the alleged discriminatory remarks. Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly,
the agency properly dismissed allegations (3) and (4).
Untimely EEO contact
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO 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) 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.
EEOC Regulation 29 C.F.R. �1614.604(c) provides that the time limits in
Part 1614 are subject to waiver, estoppel and equitable tolling.
In dismissing allegations (2) and (5), the agency stated in its final
decision that allegation (2) occurred in November 1996 and allegation
(5) occurred in June 1997, rendering appellant's EEO contact on October
27, 1997, untimely. We find, however, that it is clear from the final
agency decision itself and appellant's complaint that in allegations
(2) and (5), appellant is alleging that the discriminatory actions
complained of are in the nature of recurring violations.<1> As such,
each time appellant was allegedly denied a smoke break or his supervisor
allegedly turned out the light, the violations occurred anew. See,
e.g., Mitchell v. Department of Commerce, EEOC Appeal No. 01934120
(March 4, 1994). (alleged violation recurred each day that the agency
failed to provide complainant with a reasonable accommodation).
The Commission, however, is unable to determine the timeliness of
EEO contact. Although appellant alleged that "since" November 1996,
he was denied smoke breaks and "since" June 1997, the lights have been
turned off, we are unable to determine from the record whether any of
the alleged recurring violations occurred within 45 days of appellant's
EEO Counselor contact. Accordingly, allegations (2) and (5) will be
remanded for a supplemental investigation on the issue of timeliness.
Finally, the Commission recognizes that on appeal and during the
processing of his complaint, appellant alleged that he was unaware of
the EEO complaints process and that until December 1997, there were
no EEO posters on display where he worked. Because we have remanded
dismissed allegations (2) and (5) for a supplemental investigation, the
Commission will not herein determine whether appellant was on actual or
constructive notice of his EEO rights in order not to decide the disputed
issue of timeliness of EEO contact in a piecemeal manner. The Commission
does note, however, that although the agency submitted an affidavit of
appellant's supervisor wherein she stated that EEO posters detailing
the EEO complaints process were on display on employee bulletin boards
in the swing room and in the lobby, the Commission notes that a copy of
the poster itself was not provided and appellant continues to maintain
that no such posters were on display during the relevant time period.
The Commission also notes that the supervisor who submitted the affidavit
of posting is also the same supervisor against whom the allegations of
discrimination have been raised.
Consistent with the foregoing discussion, the agency's dismissal
of allegations (3) and (4) is AFFIRMED. The agency's dismissal of
allegations (2) and (5) is REVERSED and the allegations are REMANDED to
the agency for a supplemental investigation.
ORDER
The agency is ORDERED to conduct a supplemental investigation on the
timeliness of EEO contact, including an inquiry into whether remanded
allegations (2) and (5) recurred within 45 days of EEO Counselor contact.
Thereafter, the agency shall decide whether to process or dismiss
allegations (2) and (5). 29 C.F.R. �1614.106 et seq. The supplemental
investigation and issuance of a notice of processing and/or new final
agency decision must be completed within 30 (thirty) calendar days of
the date this decision becomes final.
A copy of the new final agency 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 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:
March 24, 1999
DATE Ronnie Blumenthal, Director
1See Robinson v. General Services Administration, EEOC Request
No. 05950558 (July 1, 1996)(allegation of unequal pay for equal work
allegation was a recurring violation and reasonable suspicion standard
not applicable because the agency would be able to continue its alleged
discrimination in perpetuity with no available remedy for complainant).