Vaughn T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019004181 (E.E.O.C. Sep. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vaughn T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2019004181 Agency No. 4E-852-0045-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 29, 2019, 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Main Post Office facility in Yuma, Arizona. On April 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability (sprain of right hip and pain) when: 1. on December 6, 2018, Complainant's supervisor yelled a question to him across the workroom floor, but did not question a co-worker; 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. 2 2019004181 2. on December 11, 2018 Complainant's supervisor questioned the reason that Complainant had brought back mail and suggested he go back and talk to his doctor if he could not do his job; 3. on December 12, 2018, Complainant's supervisor followed Complainant in his car and accused him of wasting time; and 4. on December 18, 2018, Complainant's supervisor questioned his request for assistance, made Complainant recount parcels, then the supervisor recounted the parcels himself and said Complainant counted them wrong. On April 29, 2019, the Agency issued a final decision dismissing the complaint for failure to state a claim pursuant to29 C.F.R. §1614.107(a)(1). The Agency reasoned that Complainant had not suffered an employment loss to render him aggrieved and that Complainant’s interactions with the supervisor were insufficiently severe or pervasive to qualify as harassment. The instant appeal followed. On appeal and through legal counsel, Complainant contended the complaint should not have been dismissed because supervision harassed him for not working faster instead of assisting Complainant after the hip injury he had sustained on-the-job. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(1) authorizes an agency to dismiss an EEO complaint which fails to state a claim in accordance with 29 C.F.R. §1614.103. To establish 29 C.F.R. §1614.103 standing, a complainant must be either an employee for the agency against where allegations of discrimination are raised. In addition, the claim must concern an agency practice which affects the individual an employee. An agency shall accept a complaint from any aggrieved employee who believes that he has been discriminated against because of disabling condition or other protected characteristics. 29 C.F.R. §1614.103; §1614.106(a). Consistently, this Commission has defined an “aggrieved employee” as one who suffers a present harm or loss with respect to employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). An agency should not dismiss for failure to state a claim unless it appears beyond doubt that no set of facts could entitle Complainant to relief. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Here, a fair reading of the complaint, as described in his brief on appeal, shows that he has alleged that he has been subjected to “near constant harassment and increased Agency scrutiny because of his disability.” Complainant further asserts that specific details of the nature of such harassment which he provided in his formal complaint were excluded from Agency analysis, and that the Agency chose to “issue vague mischaracterizations of the issues,” prior to dismissing them. We determine that the matters Complainant raised in the formal complaint, indeed, reflect that he claims he was harassed and subject to intensive scrutiny based on disability. 3 2019004181 CONCLUSION The Agency improperly dismissed the formal under 29 C.F.R. § 1614.107(a)(1). We REVERSE the Agency’s dismissal in the instant formal complaint and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, 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 (K0719) 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 Complainant and his representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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. 4 2019004181 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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). 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. 5 2019004181 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 September 10, 2019 Date