0120121808
07-11-2012
Stephen A. Connelly, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Stephen A. Connelly,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120121808
Agency No. 2011032
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 20, 2012, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Senior Advisor at the Agency's Healthcare and Insurance in Washington D.C.
On August 5, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On September 28, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of disability and age when:
1. on April 14, 2011, he received a Counseling Memorandum;
2. on May 25, 2011, he received an Official Memorandum;
3. on June 8 and 26, 2011, he was denied EEO rights/options in an OPM adverse action procedure;
4. on July 8, 2011, a formal grievance determination overlooked his EEO rights and protection; and
5. from April 2011 through September 2011, management officials wanted to force him to retire.
In its January 20, 2012 final decision, the Agency dismissed claims 1 and 2 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on August 5, 2011, which it determined was beyond the 45-day limitation period. The Agency dismissed claim 3 - 5 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
On appeal, Complainant argues that he continues to be discriminated against by the Agency "using harassment and making my work life impracticable by increasing its difficulty beyond tolerable disability limits (and bypassing traditional protections), management could, thereby, constructively compel me to retire."
ANALYSIS AND FINDINGS
Claims 3 - 5
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 3 - 5 for failure to state a claim. A fair reading of the matters identified in those claims reflect that Complainant claims that he was subjected to a series of related harassing incidents from April 2011 through September 2011. Complainant alleged that he was issued a Counseling Memorandum and a Letter of Reprimand; he was not granted reasonable accommodation; and his co-workers shared their concerns with him that his supervisors were trying to force him to retire since he was one of the oldest employees. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment regarding allegations 3 - 5, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims 1 and 2
The Agency also improperly dismissed claims 1 and 2 on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on August 5, 2011. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that various incidents comprising Complainant's harassment/hostile work environment claim occurred within the 45-day time period preceding Complainant's August 5, 2011 EEO Counselor contact, as discussed above in our analysis of claims 3 - 5. Because a fair reading of the record reflects that the matter identified in claims 1 and 2 is part of that harassment claim, including the matter discussed in claims 3 - 5, we find that the Agency improperly dismissed claims 1 and 2 on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 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).
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
July 11, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Stephen A. Connelly
9433 Woodhaven Rd
Jacksonville, FL 32257
Lorna S. Lewis, Chief
Center for Equal Employment Opportunity
Office of Personnel Management
1900 E St., NW Rm. 6460
Washington, DC 20415
__________________
Date
______________________________
Equal Opportunity Assistant
2
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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