Edward Jackson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 8, 2004
01A30311_r (E.E.O.C. Apr. 8, 2004)

01A30311_r

04-08-2004

Edward Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Edward Jackson v. United States Postal Service

01A30311

4/8/2004

.

Edward Jackson,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30311

Agency No. 4F-945-0079-02

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 13, 2002, dismissing his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq.

Complainant initiated EEO Counselor contact on February 5, 2002.

Informal efforts to resolve his concerns were unsuccessful. In his

formal complaint dated July 27, 2002, complainant alleged that he was

subjected to discrimination on the basis of disability.

In its final decision dated August 13, 2002, the agency determined that

complainant's complaint was comprised of the following six claims:

1) On or about June 5, 2001, management failed to process complainant's

CA-2 within a timely manner.

2) On or about June 5, 2001, requests for light/limited duty were

denied by [two named agency officials] and complainant had to take

�Forced Leave.�

On an unspecified date(s), management failed to respond to complainant's

request for and review of information.

On November 13, 2001, complainant was instructed to report for duty on

November 14, 2001 despite still being under [his] physician's care.

Complainant was denied FY 2001 Merit Performance and participation in

FY 2001 Variable Pay Program.

On December 14, 2001, management conducted a �pre-disciplinary �just

cause' interview� with the NAPS President for assisting complainant.

The agency dismissed claims (1), (2), and (4) for untimely EEO Counselor

contact, pursuant to 29 C.F.R. � 1614.107(a)(2). In addition, the agency

dismissed claims (3) and (5) for failure to state a claim, pursuant to

29 C.F.R. � 1614.107(a)(1). Furthermore, the agency dismissed claim

(6) for untimely EEO Counselor contact and failure to state a claim.

The agency stated that in regard to claim (3), the Commission does

not have jurisdiction over the processing of FOIA requests. In regard

to claim (5), the agency asserts that complainant is not an aggrieved

employee because complainant was made whole through the grievance process.

On appeal, complainant, through his attorney, asserts that the agency

improperly dismissed his complaint. Complainant asserts that the agency

misdefined his claim. Specifically, complainant states that his claim is

not the six discrete acts stated by the agency in its final decision;

rather, his complaint comprises a hostile work environment claim.

In addition, complainant asserts, �[the agency] repeatedly harassed

[complainant] by refusing his requests for information about reasonable

accommodations, the interactive process, the processing of his OWCP claim,

job offers given him that did not comply with his medical limitations,

[and] the withholding of Merit bonuses and EVA awards.�

In regard to the agency's assertion that several of complainant's claims

were untimely raised with an EEO Counselor, complainant asserts,

�[t]hough various dates of the incidents of harassment alleged by

[complainant] fall within the 45 days of his EEO counseling request, [the

agency]...chose not to include those dates in its FAD's definition of the

�issues'.� In regard to the agency's assertion that claim (3) involves

FOIA requests, complainant asserts that these are not FOIA claims, but

rather part of his hostile work environment claim. In regard to claim

(5), complainant asserts that he may not have been made whole through

the grievance process, �[i]t is true ultimately [complainant] did get

some of his merit and EVA amounts, but we do not have a full accounting.�

The Commission finds that based upon a fair reading of the entire record,

the agency mischaracterized and improperly fragmented complainant's

claims. The Commission finds that complainant alleges a series of events

surrounding his requests for a reasonable accommodation that subjected

him to a hostile work environment. Instead of treating these events

together as incidents of a claim of harassment, the agency separated

the incidents and viewed them individually.

Nonetheless, we affirm the agency's dismissal of claims (1) and (6).

Regarding claim (1), the processing of complainant's CA-2 form, the

Commission has held that an employee cannot use the EEO complaint process

to lodge a collateral attack on another proceeding. The proper forum

for complainant to challenge actions which occurred in connection with

his OWCP claim is with the OWCP itself. See Willis v. Department of

Defense, EEOC Request No. 05970596 (July 30, 1998). Regarding claim

(6), pertaining to management conducting a pre-disciplinary interview

with complainant's representative, complainant has failed to show how

he personally was aggrieved by this alleged incident. We now turn to

the agency's dismissal of claims (2) - (5).

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 Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). 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.

The Commission determines that some of the alleged incidents identified

in claims (2) - (5) were timely raised with an EEO Counselor. The record

contains a copy of the EEO Dispute Resolution Specialist's Inquiry Report.

Therein, the Report states that complainant was allegedly denied requests

for light duty from June 5, 2001 through January 28, 2002, and that

complainant was forced to take leave; thus, a portion of these alleged

actions occurred within forty-five days of the date that complainant

initiated EEO Counselor contact on February 5, 2002. In addition, the

record also contains a copy of a Notification of Incomplete Counseling

Request form. Therein, it states that complainant learned of his alleged

merit denial<1> on December 26, 2001, which is within the forty-five-day

limitation period. Because some of the incidents identified in

claims (2) - (5) occurred within the forty-five-day limitation period,

complainant's other related claims are not time barred.

The Commission now turns to whether complainant has stated a cognizable

claim of harassment regarding the matters raised in claims (2) - (5).

A complaint should not be dismissed for failure to state a claim unless

it appears beyond a 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 considering them together in the light most favorable

to the complainant, to determine whether they are sufficient to state

a claim. Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). In the instant case, we find complainant has stated an

actionable claim of harassment. Furthermore, with regard to claim (3),

there is no evidence of record that complainant's purported requests for

information were formal FOIA requests, which would warrant dismissal as

beyond the EEO purview.

Accordingly, the agency's decision dismissing claims (1) and (6)

is AFFIRMED. However, the agency's decision to dismiss claims (2) -

(5) is REVERSED. Those matters, as defined herein as a hostile work

environment claim, are REMANDED to the agency for further processing

in accordance with the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant 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 complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant 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 (K0501)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant 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. �� 1614.407 and 1614.408.

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)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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. 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

4/8/2004

Date

1While the Commission acknowledges that

complainant in his formal complaint stated that he has received some of

the relief regarding the denial of his FY 2001 merit performance through

the grievance process, complainant on appeal asserts that there has

not yet been given �a full accounting.� In addition, the record does

not contain any conclusive evidence that complainant was �made whole�

through the grievance process.