Norberto G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 26, 20190120180261 (E.E.O.C. Mar. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Norberto G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180261 Hearing No. 430201700266X Agency No. 4V712000416 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from an October 10, 2017 Final Agency Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging 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 events giving rise to this complaint, Complainant was employed by the Agency as a Lead Mechanic/Lead Automotive Technician, PS-09, at the Agency’s Winston-Salem Vehicle Maintenance Facility (“VMF”) in Winston-Salem, North Carolina. On August 24, 2016, Complainant filed an EEO complaint alleging discrimination and harassment by the Agency on the basis of disability when: 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. 0120180261 2 1. In January, May, and July 2015, he was harassed by a Level 10 mechanic and management did not take any action; 2. On November 25, 2015, the Acting Supervisor (“S1”) (formerly the Level 10 mechanic) called him into the office and gave him a verbal warning; 3. In late 2015, on multiple unspecified dates, S1 harassed him about his work and time off, and accused him of falsifying documents, 4. On May 4, 2016, S1 called him into the office and yelled at him about a repair he had made, and then posted the work order for the repair on the office window for his co-workers to view, 5. On May 16, 2016, S1 questioned him about the time it took for him to make a repair, questioned his need to use the restroom first thing in the morning, and told him that he needed to do an honest day's work for an honest day's pay, 6. On unspecified dates, he was bypassed for higher level details in the shop and was not offered training for any higher-level positions, and, 7. On an unspecified date, S1 threatened to sue him if he (S1) did not receive a promotion as a result of the instant EEO complaint. After investigating Complainant’s complaint, the Agency provided him with a report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing but subsequently withdrew his request. On August 24, 2017, the assigned AJ remanded the matter to the Agency for a FAD, pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to establish discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 0120180261 3 Our regulations provide that the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See 29 C.F.R. § 1614.108(b). While the Agency has an obligation under 29 C.F.R. § 1614.108(b) to develop an impartial and appropriate factual record, the complainant can also cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. Here, the ROI does not reflect all of the claims raised in Complainant’s formal complaint, specifically with respect to retaliation and denial of a request for reasonable accommodation. Additionally, the ROI insinuates that Complainant and his primary witness, the Union Steward, failed to timely submit their responses to the Investigator’s affidavit request. Yet, the record indicates that it provided Complainant’s Union Steward one day to reply. Additionally, Complainant submitted the materials, including the Union Steward’s response and several other witness statements by mail postmarked February 7, 2016. February 7, 2016 was the deadline to submit based on the Agency’s two-week extension granted Complainant. Regardless, the ROI was submitted on February 7, 2016, with Complainant’s documentation submitted separately, and not subject to investigatory review. We do not find the Agency’s factual record and investigation sufficient. Retaliation The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See Taylor v. United States Postal Serv., EEOC Appeal No. 0120060151 (Jun. 6, 2007) (citing EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; Carroll. We have previously found adverse actions taken in response to a request for reasonable accommodations, or for asserting the right to reasonable accommodation when the Agency was aware of the request states a claim of reprisal. See Keller v. United States Postal Serv. (agency issued notice of removal two days after complainant requested additional floor mats as a reasonable accommodation for her foot condition). A fair reading of the record, even when limiting the review to the pre-complaint and formal complaint documentation cited in the ROI, indicates that Complainant states a claim of unlawful retaliation. The record contains documentation that Complainant met with S1 and Management multiple times, beginning November 30, 2015, to address alleged harassment based on Complainant’s medical restrictions (i.e. disability). 0120180261 4 Complainant’s formal complaint alleges escalation of the harassment following this protected activity, and in reference to Complainant’s medical restrictions, such as restriction from working overtime. The ROI also overlooks a potential instance of per se retaliation, as Claim 7 literally states that the alleged discriminatory act (threat to sue) was because of Complainant’s EEO activity associated with the instant complaint. This incident was witnessed by Complainant’s Union Steward, whose testimony is both in the record and was timely submitted by Complainant in the form of a signed affidavit. Denial of Reasonable Accommodation EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it." See, e.g. Burris v. Dep’t of the Navy, EEOC Appeal No. 01200645531 (Jan. 10, 2007) (finding the agency’s denial of a complainant’s request for a position within his medical restrictions, despite the ongoing nature of the complainant’s alleged need for an accommodation, constituted a recurring violation). We have long held that a complainant is not required to use the “magic words” when requesting a reasonable accommodation. Instead, the employee or the employee's representative need only inform the Agency that he or she needs an adjustment or change at work for a reason related to a medical condition. See Triplett-Graham v. United States Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006). In his Formal Complaint, and in the counselor and investigative reports, Complainant recounts how work orders for “2 tons,” referring to vehicles weighing 2 tons, were the least desirable and routinely “skipped” by the mechanics in favor of work orders for other vehicles. Complainant testified that S1 would not let him skip 2 ton work orders even when he had already “done his fair share,” and when Complainant explained that extensive work on 2 tons aggregated his service-connected back injury. We find Complainant essentially raised a claim of improper denial of a request for reasonable accommodation. We also note Complainant’s allegations that this was an “ongoing” issue. Despite the Agency’s acknowledgement and discussion of Complainant’s allegation, it does not include a denial of reasonable accommodation analysis. As the FAD does not include an analysis of retaliation for engaging in EEO activity, including with respect to a reasonable accommodation, nor does it include an analysis of Complainant’s allegation that he was denied a reasonable accommodation, this complaint must be remanded back to the Agency for further investigation. 0120180261 5 CONCLUSION Accordingly, the Agency’s FAD is VACATED, and we REMAND the matter for further processing in accordance with the ORDER below: ORDER 1. Within sixty (60) calendar days of the date on this Order, the Agency shall conduct a supplemental investigation to address the retaliation and reasonable accommodation claims discussed in this Decision. The Agency must issue a new Report of Investigation (ROI) and, in addition to the retaliation and reasonable accommodation claims, the new ROI must include Complainant and the Union Steward’s affidavits, and Complainant’s other evidentiary statements, which he submitted to the Agency in accordance within the February 7, 2016 deadline. 2. Upon receipt of the new ROI, Complainant shall be provided with fifteen (15) calendar days to respond and submit additional evidence. 3. Within one-hundred and twenty (120) calendar days of the date on this Order, the Agency must issue a new FAD based on the new ROI and Complainant’s submissions, with appeal rights to this Commission. 4. Within thirty (30) calendar days of the issuance of the FAD, the Agency shall submit a Compliance Report to this Commission, as provided in the section “Implementation” section below. The Compliance Report shall include copy of the new ROI and FAD. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 0120180261 6 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 0120180261 7 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’s signature Carlton M. Hadden, Director Office of Federal Operations March 26, 2019 Date Copy with citationCopy as parenthetical citation