0120111029
05-05-2011
Charles E. Johnese, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Charles E. Johnese, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120111029
Agency No. 1G-708-0013-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 22, 2010, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. Upon review, the Commission finds that
Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Flat Sorter Machine Clerk at the Agency’s Processing and
Distribution Center in Baton Rouge, Louisiana. On September 7, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American), national
origin (not specified), sex (male), color (Light Brown), disability,
and in reprisal for prior protected EEO activity when:
1. On an unspecified date, management withheld injury documentation and
refused to file documentation within 24 hours;
2. On an unspecified date, Complainant was denied immediate medical
attention because documentation was not timely filed;
3. On an unspecified date, Complainant was forced to return to work
before the doctor released him and was forced to perform duties outside
his restrictions;
4. On an unspecified date, management held up Complainant’s Workers’
Compensation paperwork, causing him to exhaust his sick leave;
5. On an unspecified date, the Agency refused to honor Complainant’s
medical restrictions; and,
6. On an unspecific date, Complainant was exposed to HIV/AIDS antigens
while working outside his restrictions.
On October 22, 2010, the Agency issued a final decision dismissing
the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. The Agency concluded that Complainant's formal
complaint alleged six issues, but contained no specific dates of any
of the alleged incidents of discrimination. The Agency found that the
complaint was vague and lacked the specificity required by 29 C.F.R. §
1614.106(c). As a result, the Agency dismissed the complaint for failure
to state a claim. Alternatively, the Agency dismissed the complaint for
Complainant’s failure to provide relevant information and for untimely
EEO counselor contact.
On appeal, Complainant asserts that his complaint was improperly dismissed
because he provided the Agency with letters explaining his claims with
specificity. Additionally, Complainant alleges that the Agency failed
to provide him a reasonable accommodation to allow him to continue to
work a limited duty assignment. Finally, Complainant contends that the
Agency retaliated against him by incorrectly entering his leave status.
Accordingly, Complainant requests that the Commission reverse the
Agency’s dismissal. The Agency requests that the Commission affirm
its dismissal.
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 or applicant for employment who believes that she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
The Commission finds that Complainant has sufficiently alleged that
he suffered an adverse action as a result of the Agency’s conduct.
The incidents alleged by Complainant created personal loss and harm
regarding terms, conditions or privileges of employment. Moreover,
the Commission find that the claims, if proven to be true and viewed
in a light most favorable to Complainant, may indicate that Complainant
has been subjected to harassment that was
sufficiently severe or pervasive to alter the conditions of employment.
See Cobb v. Dep’t of the Treasury, EEOC Request no. 05970077 (Mar. 13,
1997).
For example, in claims (3) and (5), Complainant alleges that he
was worked outside of his medical restrictions in violation of the
Rehabilitation Act. Additionally, Complainant contends that the Agency
withheld documentation causing him to exhaust all of his sick and annual
leave. Complainant has shown an injury or harm to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t
of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Further,
the Commission notes that when reprisal is alleged, as in the instant
case, adverse actions need not materially alter the terms and conditions
of employment to state a viable claim, but rather must be based on
retaliatory motivation and be reasonably likely to deter Complainant or
others from engaging in protected activity. See EEOC Compliance Manual,
Section 8, “Retaliation,” No. 915.003 (May 20, 1998). Thus, the
Commission finds that the Agency improperly dismissed Complainant’s
complaint for failure to state a claim.
CONCLUSION
Accordingly, the Agency’s dismissal is REVERSED and the complaint is
REMANDED 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 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 (Nov. 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
May 5, 2011
Date
2
0120111029
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013