01972548
03-30-1999
Paul W. Roshio, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paul W. Roshio v. United States Postal Service
01972548
March 30, 1999
Paul W. Roshio, )
Appellant, )
) Appeal No. 01972548
v. ) Agency No. 4-H-335-1061-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 29, 1997, appellant filed a timely appeal of a January 22,
1997 final agency decision dismissing his complaint for failure to
contact an EEO Counselor in a timely manner.
Initially, the Commission notes that appellant's complaint has been
the subject of two prior final agency decisions and two remands by the
Commission on the issue of timeliness of EEO contact. In a February 15,
1995 final agency decision (FAD-1), the agency identified the issue in
appellant's complaint as involving only an April 30, 1994 instruction
to use his badge to clock in. The agency determined in FAD-1 that
appellant contacted an EEO Counselor eight months after the occurrence
of the alleged discriminatory incident, which was beyond the 45-day
limitation period. In a September 11, 1995 decision, the Commission
vacated FAD-1, finding that FAD-1 failed to address all the issues
presented in appellant's complaint and, also, that the agency failed
to investigate whether appellant's complaint allegations constituted
a continuing violation. Roshio v. U.S. Postal Service, EEOC Appeal
No. 01953283 (September 11, 1995). Accordingly, the complaint in FAD-1
was remanded so that the agency could: (1) define the issues of the
complaint; (2) conduct a supplemental investigation into whether the
appellant established a continuing violation; and (3) issue a new final
agency decision.
Subsequently, the agency issued a new final agency decision (FAD-2),
dated December 27, 1995, wherein it identified nine allegations in
appellant's complaint. The agency dismissed a portion of the complaint
based on untimely EEO counselor contact, and the remaining allegations
for failure to state a claim. Appellant appealed FAD-2 to the Commission.
In a second decision (EEOC Appeal No. 01962159), the Commission found
no evidence in the record which demonstrated that the agency conducted
the required investigation into whether appellant's complaint alleged a
continuing violation. Because the agency failed to demonstrate that it
had complied with the Commission's prior order, FAD-2 was vacated and the
case was remanded to the agency to conduct a supplemental investigation
and to issue an acceptance letter and/or a new final agency decision
based on the findings of that investigation. Among other things,
the agency was specifically ordered to place in the record evidence
which demonstrated when the alleged discriminatory actions occurred;
to determine when appellant learned or first suspected discrimination;
to determine whether any untimely raised allegations constituted a
continuing violation; to supplement the record with sworn statements and
documentary evidence regarding the timeliness of appellant's allegations;
to process or dismiss any allegations; and to issue an acceptance letter
and/or a final agency decision.
In FAD-3, the final agency decision, which is the subject of the present
appeal, the agency identified only one allegation, the same allegation
identified in FAD-1, i.e., whether appellant was discriminated against on
the basis of sex (male) when on April 30, 1994, he was given instruction
to use his badge in the electronic badge reader in order to show his
daily clock rings. The agency noted in FAD-3 that because appellant
did not contact an EEO Counselor until December 20, 1994, regarding the
alleged discrimination, the contact occurred beyond the 45 days required
for timely contact and was therefore untimely.
The Commission's regulations provide that an aggrieved person must
initiate contact with an EEO counselor within 45 days of the alleged
discriminatory event or personnel action. 29 C.F.R. �1614.105(a)(1).
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling.
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 (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).
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 (October 5, 1995).
By letter dated December 17, 1994 to the EEO office, appellant noted
that since arriving at the Port Richey Post Office, he was subjected to
harassment. Therein, appellant identified what he stated was a "brief
summary" of the incidents of harassment and stated that he "could go
on and on." All but two of the incidents specifically named the Port
Richey Postmaster, appellant's supervisor. Included in the December 17,
1994 letter of appellant is a reference to having to use his badge to
clock in and to clock out. The record also contains an undated letter
which was part of the record of the supplemental investigation ordered
by the Commission. In the letter, appellant identified 10 alleged
incidents of harassment, including the reference to the clock rings.
Appellant also alleged therein that the harassment continued from 1993
through 1995.<1> In an October 22, 1996 EEO Investigative Affidavit which
is also part of the supplemental investigation ordered by the Commission,
appellant stated that the harassment was ongoing.
Upon review, we find that the agency's decision in FAD-3 was improper.
Identifying the allegation in appellant's complaint as only involving the
April 30, 1994 clock ring incident, the agency found that appellant's
December 20, 1994 EEO Counselor contact occurred more than 45 days
from the date of the alleged incident of discrimination and dismissed
the allegation. In so doing, the agency ignored the other allegations
and failed to consider the dismissed allegation as part of a broader
claim of continuing harassment. The Commission has consistently held
that an agency should not ignore the "pattern aspect" of a complainant's
allegations and define the issues in a piecemeal manner where an analogous
theme unites the matter complained of. See Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). The record makes
it clear that from the time he sought informal counseling, appellant
has been alleging that he was subjected to continuing harassment.
Nonetheless, the agency misconstrued appellant's complaint.
Having misdefined the complaint by focusing narrowly on one of the
incidents of alleged harassment, the agency consequently failed to
consider the continuing violation theory.<2> Rather than remand this
matter for a third time and the record being sufficient, we will address
the continuing violation theory. Although the dismissed allegation,
standing alone, was untimely, appellant alleges that the harassment was
ongoing and the record contains numerous incidents of alleged harassment
by the Port Richey Postmaster. Accordingly, we find that appellant's
allegations of discriminatory actions taken by the Port Richey Postmaster
adequately state a continuing violation. The record also reveals that
on November 14, 1994, appellant's Performance and Review Report was
criticized by the Port Richey Postmaster, the same person that appellant
identified as having allegedly subjected him to numerous incidents of
harassment. The record also reveals that on December 16, 1994, appellant
was issued a notice of proposed reduction in grade and/or pay by the
Port Richey Postmaster.<3> Because the Commission has found that the
dismissed allegation is part of an overall allegation of discriminatory
harassment and that the incidents of harassment constitute a continuing
violation and because the record discloses that there were at least
two incidents involving the Port Richey Postmaster within 45 days of
appellant's EEO Counselor contact on December 20, 1994, we find that
the complaint of harassment was timely.
Consistent with our discussion herein, the final agency decision,
is REVERSED and appellant's complaint of harassment is REMANDED to
the agency for further processing consistent with the Order below and
applicable regulations.
ORDER
The agency is ORDERED to process the remanded complaint as a claim
of ongoing harassment and in accordance with 29 C.F.R. �1614.108.
The agency shall acknowledge to the appellant that it has received
the remanded complaint 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 acknowledgement 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 (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:
March 30, 1999
DATE Ronnie Blumenthal, Director
1An April 12, 1995 letter from appellant indicates that he submitted
his resignation as a supervisor.
2Where a complainant alleges recurring incidents of harassment, 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).
3The supplemental investigative report indicates that the proposed action
was changed to a 10-day suspension in January 1995.