0120082683
11-13-2008
Angel L. Gonzalez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Angel L. Gonzalez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082683
Agency No. 4E-800-0158-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated April 22, 2008, 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., 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.
On January 4, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. Subsequently,
complainant filed the instant formal complaint on April 3, 2008. Therein,
complainant alleged that he was subjected to harassment and a hostile
work environment on the bases of race (Puerto Rican1), national origin
(Hispanic), disability (wrist, ankle and back), age (55), and in reprisal
for prior EEO activity when2:
(1) between late 2006 and early 2007, he was repeatedly denied the
opportunity to work overtime, denied work hours, and given duties that
violated his light duty restrictions;
(2) between late 2006 and late 2007, he was subjected to derogatory
comments, denied POS-1 training, and he had to relinquish his window
clerk case drawer;
(3) on or about April 18, 2007, the acting Postmaster made a comment about
his fall, hired an investigator to look into his workers' compensation
claim, and contacted his physician to dispute his decision regarding
his workers' compensation claim;
(4) on May 10, 2007, he was issued a Letter of Warning which was reduced
to a discussion;
(5) on August 1, 2007, he was given a warning letter;
(6) between mid-October and early November 2007, derogatory comments
were made to him in Spanish and the Postmaster tried to persuade him to
take disability retirement; and
(7) after December 27, 2007, the Postmaster failed to investigate when
harassing letters were sent to his wife by a Postal worker.
In its April 22, 2008 final decision, the agency dismissed claims (1)
through (6) on the grounds of untimely EEO Counselor contact, pursuant
to C.F.R. � 1614.107(a)(2). The agency determined that complainant's
initial EEO Counselor contact was on January 4, 2008, which was beyond
the 45-day limitation period.
The agency also dismissed claims (2) through (3) and (7) pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim stating
that the claims did not rise to the level of actionable harassment.
Regarding claims (2) and (7), the agency determined that complainant
failed to demonstrate that he suffered harm to a term, condition, or
privilege of his employment. Regarding claim (3), the agency stated that
the alleged incidents constituted a collateral attack on the Office of
Workers' Compensation Programs (OWCP) process.
As a threshold matter, the Commission finds that the agency improperly
fragmented complainant's complaint in its final decision. A fair reading
of the record reflects that complainant raises a harassment/hostile
work environment claim. The matters identified in the agency's final
decision are incidents comprising complainant's harassment claim.
Failure to state a claim
Upon review of the record, the Commission finds that the agency
improperly dismissed claims (2), (3) and (7) for failure to state a
claim. The record reflects that complainant has claimed that he has been
treated differently from other employees with regard to being subjected
to derogatory comments; denied POS-1 training; having to relinquish his
window clerk case drawer; the acting Postmaster making a comment about
his fall, hiring an investigator to look into his claim, and contacting
his physician to dispute his decision concerning his OWCP claim; the
Postmaster failing to investigate when harassing letters were sent to his
wife by a Postal worker; and being subjected to harassment and a hostile
work environment by management. These matters state an actionable claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Many of the agency's arguments in
support of its dismissal for failure to state a claim go to the merits
of complainant's allegations, and cannot be appropriately considered at
the dismissal stage before an investigation has been conducted.
Untimely EEO Counselor Contact
The agency also improperly dismissed claims (1) through (6) on the grounds
of untimely EEO Counselor contact. The record reflects that complainant
initiated EEO Counselor contact on January 4, 2008. The Commission finds
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 at least one of the incidents comprising of
complainant's hostile work environment claim occurred within the 45-day
time period preceding to complainant's January 4, 2008 EEO Counselor
contact. Specifically, complainant alleged that he was subjected to a
hostile work environment when, after December 27, 2007, the Postmaster
failed to investigate when harassing letters were sent to his wife
by a Postal worker. Based on the foregoing, we find that the agency
improperly dismissed claims (1) through (6) on the grounds of untimely
EEO Counselor contact.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's 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 (E0408)
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 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 13, 2008
Date
1 It is noted that under the statutes enforced by the Commission,
"Puerto Rican" denotes a national origin rather than a race.
2 For ease of reference, the Commission has numbered complainant's claims
as claims (1) through (7).
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0120082683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082683