0120102512
09-15-2010
Michael Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Michael Gibson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120102512
Agency No. 1H321001610
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 12, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of the events at issue, Complainant was employed as a Mail Processing Clerk at an Agency facility in Jacksonville, Florida. In his EEO complaint, Complainant alleged that the Agency subjected to him discrimination on the bases of disability and reprisal for prior protected EEO activity when: on January 16, 2010, he was issued a Letter of Decision - Notice of Proposed Removal; in August 2009, management refused his request to receive commuting funding when he could not drive to work as a result of a work-related injury; when his request for payment for surgery to repair a work-related shoulder injury was denied; on August 28, 2009, he was harassed by the Postal Inspection Service (PIS), who had secretly conducted a surveillance of his home; in September 2009, he was denied a request for reasonable accommodation to perform duties within his medical restrictions on the workroom floor; and on September 10, 2009, he was questioned by the PIS.
Because the claim involving his removal was considered a "mixed" issue, the Agency removed it from the instant complaint and began processing it separately under Agency Complaint No. 1H-321-0031-10, with the intention of giving Complainant appeal rights to the Merit Systems Protection Board. With regard to the remaining issues, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) for untimely EEO Counselor contact, as well as for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
As noted above, the Agency dismissed the complaint on alternate grounds, first for untimely EEO Counselor contact. In doing so, we find that the Agency improperly analyzed the complaint by fragmenting it into its individual allegations. A fair reading of the allegations in the instant complaint, as well as the related EEO counseling report, reveals that Complainant is, in essence, raising a complaint on ongoing harassment and failure to provide reasonable accommodation that led up to and included his eventual removal. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). This principle applies to this case as it is clear that Complainant initiated contact with an EEO Counselor within the regulatory time frame from the removal action. While the removal action was subsequently separated from the instant complaint by the Agency for mixed case processing, for the purposes of determining timely EEO counselor contact, the removal was the timely raised subject of the counseling and, thereby, renders the remainder of Complainant's harassment/hostile work environment claim timely. Complainant's reasonable accommodation claim was also timely raised as it was ongoing until his removal.
Failure to State a Claim
There is little doubt that Complainant has stated a claim of failure to accommodate his disability. With regard to his harassment/hostile work environment claim, where, as here, a complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission will examine whether a complainant's allegations, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). In the instant case, we find that Complainant's allegations, considered together, are sufficient to state a claim of discriminatory harassment/hostile work environment that requires further investigation and processing.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and REMANDED in accordance with the following Order.
ORDER (E0408)
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 (K1208)
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 (M0610)
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 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 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 (R0408)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 15, 2010
__________________
Date
2
0120102512
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102512