Peter L. Ellis, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionMar 30, 2012
0120120290 (E.E.O.C. Mar. 30, 2012)

0120120290

03-30-2012

Peter L. Ellis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.




Peter L. Ellis,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Capital Metro Area),

Agency.

Appeal No. 0120120290

Agency No. 1K-201-0016-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated September 8, 2011, 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.

Upon review, the Commission finds that Complainant's complaint was

improperly dismissed, as moot, as untimely and for failure to state a

claim, pursuant to 29 C.F.R. § 1614.107(a)(1).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a Mailhandler at the Agency’s Brentwood Mail Facility in Brentwood,

Maryland.

Complainant had prior EEO complaint against his supervisor, which he

agreed to withdraw in December 2010. However, Complainant claims that

the hostility resumed and he believed that he was being singled out for

disciplinary actions while similarly situated female employees were not

disciplined. On April 18, 2011, Complainant requested EEO counseling.

On July 30, 2011, Complainant filed a formal complaint alleging that he

was subjected him to discrimination on the basis of sex (male) when:

1. On January 23, 2011, Complainant was issued a Letter of Warning for

unsatisfactory attendance, while a female employee was not held to the

same standards.

2. On March 5, 2011, Complainant’s supervisor threatened him and

imposed stricter requirements on Complainant then he did for a female

employee. The Supervisor did not allow him to talk to other employees

but regularly allowed a female employee “to stop working and talk with

the truck drivers for hours.”

3. On April 9, 2011, his supervisor used a leave slip technicality to

issue Complainant a seven-day suspension.

4. Complainant’s supervisor accused Complainant of defrauding the

post office.

The Agency reframed the allegations as raising two sex discrimination

claims: the January 3, 2011 Letter of Warning and the seven-day

suspension.

As relief and as stated in his complaint, Complainant sought equitable

treatment, compensatory relief and a change in supervisors.

The record shows that, as a result of a grievance proceeding, the Letter

of Warning had been removed from Complainant’s file and the suspension

was expunged from his record.

On September 8, 2011, the Agency issued a final decision dismissing the

complaint with regard to the Letter of Warning and the suspension for

failure to state a claim and untimely EEO contact.

First, with regard to its finding of failure to state a claim, the

Agency reasoned that the claims concerning the Letter of Warning and

the suspension had been rendered moot by the grievance settlement on

both matters. Without explanation, the Agency further found that there

was no reasonable expectation that the alleged actions would recur and

that Complainant had received all of the relief to which he was entitled

as a result of a grievance procedure. Thus, the Agency determined that

Complainant was no longer aggrieved.

Next, the Agency determined that Complainant’s claim with regard to

the Letter of Warning was untimely. The Agency reasoned that Complainant

did not contact a Counselor until April 18, 2011, approximately 85 days

after the date of the alleged January 2011 incident.

The instant appeal followed. On appeal, Complainant maintains that he

continues to face disparate treatment from his supervisor, who subjects

him “to habitual acts of bogus charges” and that he has a fear that

his supervisor will find a way to retaliate against him.

ANALYSIS AND FINDINGS

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 who believes that he has been discriminated against

by that agency because of retaliation. 29 C.F.R. § 1614.103(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).

We consider the entirety of Complainant’s allegations and view them

together. The consecutive disciplinary actions, coupled with the alleged

selective enforcement of rules, false accusations and denying Complainant

the ability to engage in behavior that is permitted for his female

coworkers, without harassment, are matters that are part of a series

of alleged discriminatory events. Because he has alleged an ongoing

pattern of harassment and an injury or harm for which there is a remedy,

Complainant has stated a cognizable claim under the EEOC regulations. See

Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Also

see Carmona v. USPS (Western Area), EEOC Appeal No. 0120114228 (February

10, 2012).

Turning to the issue of mootness, 29 C.F.R. § 1614.107(a)(5) provides

for the dismissal of a complaint when the issues raised therein are moot.

To determine whether the issues raised in Complainant’s complaint

are moot, the fact finder must ascertain whether (1) it can be said

with assurance that there is no reasonable expectation that the alleged

violation will recur; and (2) interim relief or events have completely

and irrevocably eradicated the effects of the alleged discrimination.

See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo

v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

When such circumstances exist, no relief is available and no need for

a determination of the rights of the parties is presented.

Here, the record reflects that additional alleged violations have occurred

after January of 2011. The first prong (no reasonable expectation of

the violation recurring) is not met.

The relief provided has not completely eradicated the effects. Complainant

requested compensatory damages in his complaint. The Agency issued its

dismissal without regard to Complainant’s request for compensatory

relief. The Agency must address the issue of compensatory damages when

the Complainant presents objective evidence that he incurred compensatory

damages and that the damages were related to the alleged discrimination.

See Romo v. USPS (Pacific Area), EEOC Appeal No. 0120113670 (January 13,

2012) (reversing dismissal where the Agency did not request objective

evidence of compensatory damages). Should Complainant prevail in his

claims, the possibility of an award of compensatory damages exists,

and Complainant’s claim is not moot. See Glover v. USPS, EEOC Appeal

No. 01930696 (December 9, 1993).

Finally, we turn to the issue of timeliness of the EEO contact for

the first allegation (that on January 23, 2011, the Agency issued

Complainant a Letter of Warning, but a female employee was not held

to the same standard). We find that the record provides sufficient

undisputed proof that Complainant contacted the EEO Counselor on April

18, 2011. We find, however, that Complainant’s remaining allegations

were timely and are part of a claim of ongoing harassment. 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). Therefore, the Letter of Warning should be considered

as part of Complainant’s ongoing harassment claim.

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing

Complainant's complaint. We REMAND the complaint 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 (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 tends 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 (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 (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

March 30, 2012

__________________

Date

2

0120120290

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120120290