Garry H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 2, 2015
0120152560 (E.E.O.C. Dec. 2, 2015)

0120152560

12-02-2015

Garry H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Garry H.,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120152560

Agency No. 4K-048-0030-15

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated July 13, 2015, 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.

BACKGROUND

During the period at issue, Complainant worked at an Agency Customer Care Center in Los Angeles, California.

On March 9, 2015, Complainant contacted an EEO Counselor. During EEO counseling, Complainant alleged that he was being harassed. Specifically, the EEO Counselor's Report reflects that Complainant asserted that from October 12, 2012 through the present time, he was being harassed by management. Informal efforts to resolve his concerns were unsuccessful.

On June 26, 2015, Complainant filed the instant formal complaint, claiming that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected EEO activity.

On July 13, 2015, the Agency issued the instant final decision. Therein, the Agency determined that the formal complaint was comprised of the following four claims:

1. on February 9, 2015, Complainant was sent a letter to report for an investigative interview;

2. on February 16, and March 9, 2015, Complainant requested information from the Agency and it was not provided;

3. on February 18 and June 9, 2015, Complainant was sent letters of inquiry; and,

4. on March 4, 2015, Complainant was given an investigative interview.

On July 13, 2015, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. The Agency determined that Complainant's formal complaint was comprised exclusively of incidents regarding the investigative interviews. Specifically, the Agency stated that Complainant did not relate or present any evidence to demonstrate a loss of a term, condition, or privilege of employment, or that he suffered any discipline as the result of the investigative interviews. The Agency acknowledged that the Complainant may have felt harassed and retaliated against by management, but stated that the totality of the circumstances, even if true, were neither sufficiently severe nor pervasive enough to create a discriminatorily hostile work environment. Additionally, the Agency noted that Complainant did not cite any particular situation(s) that would deter a reasonable person from engaging in protected activity.

On appeal, Complainant contends that he is an aggrieved employee as a result of the matters raised during EEO complaint processing. Complainant's appeal brief discusses, among various matters, issues involving his workers' compensation claim; job suitability; sick leave; disability accommodation; work restrictions; and being placed on Absence Without Leave (AWOL) status by the Agency. Complainant contends that due to the Agency's actions, he has lost his medical benefits, has been unable to participate in the Agency's Thrift Savings Plan, has been forced into a financially unstable situation and has seen his various illnesses exacerbated.

ANALYSIS AND FINDINGS

As a threshold matter, the Commission determines that the formal complaint was not comprised exclusively of the matter identified in the Agency's final decision. Instead, a fair reading of the pre-complaint documents in conjunction with the formal complaint, as reinforced by Complainant's appellate arguments, reflects that Complainant claimed he was harassed through a variety of events that encompassed more than the above referenced incidents.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint 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, .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).

A fair reading of Complainant's complaint reflects that Complainant alleged a pattern of harassment. In its final decision, the Agency distilled the matters raised in Complainant's formal complaint to allegations relating only to the investigative interviews. We find, however, that the formal complaint is not comprised exclusively of this matter, but instead, addresses a pattern of harassing incidents preceding the instant formal complaint. For example, the EEO Dispute Resolution Specialist's (DRS) Inquiry Report notes that Complainant alleged that from October 12, 2012 and onward, he was harassed by Agency management. Complainant also details several harassing events in his appeal brief, including the matters identified above. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).

CONCLUSION

Accordingly, the Agency's final decision dismissing the formal complaint is REVERSED. The complaint as defined herein is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.

ORDER (E0610)

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 (K0610)

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 77960, Washington, DC 20013. 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 (M0815)

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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)

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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 2, 2015

__________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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