0120121815
08-17-2012
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. 0120121815
Agency No. 1G-708-0019-10
DECISION
On November 30, 2011,1 Complainant filed an appeal from the Agency's October 28, 2011, final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
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 facility in Baton Rouge, Louisiana.
On September 7, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) 2, sex (male), color (light brown), and reprisal for prior protected EEO activity3 when he was subjected to harassment. In support of his claim of harassment, Complainant asserted that the following events occurred:
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 Office of Workers' Compensation Program (OWCP) claim 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.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
This appeal followed. On appeal, Complainant's attorney at the time (Attorney) argued that Complainant had requested and was denied a hearing before an AJ. Further, Complainant asserted that Management gave inconsistent statements. Complainant provided several medical documents to support his claim of discrimination. The Agency requested that the Commission affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Request for a Hearing
As an initial matter, we note that the Attorney argued that Complainant had requested a hearing. We note that Complainant was provided with a copy of the investigation, which he received on or about August 17, 2011. The transmittal letter from the Agency clearly stated that if Complainant wanted to request a hearing, he needed to mail his request to the EEOC's New Orleans Field Office. On appeal, the Attorney included a copy of a letter she sent to the Commission's Office of Federal Operations, dated September 7, 2011, requesting a hearing. The Attorney failed to show that she mailed the request to the EEOC's New Orleans Field Office as directed. We note that in Henry v. Dep't of Veteran Affairs, EEOC Request No. 05901116 (November 30, 1990), the Commission held that it will dismiss an appeal as untimely filed when the complaint was mailed to the wrong office, even if it would have been timely filed if mailed directly to the Commission. Using the same analysis, we find that Complainant's request for a hearing was mailed to the wrong office and is now untimely.
Events (1), (2) & (4)
The Commission now turns to Complainant's claim of harassment. Upon review of the investigation, we find that some of the events Complainant raised in support of his claim of discrimination are not within our jurisdiction. Specifically, we note that events (1), (2), and (4) allege discrimination when management withheld documentation or held up Complainant's claim with OWCP. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred regarding his OWCP claim is with OWCP itself. It is inappropriate to now attempt to use the EEO process to collaterally attack the OWCP process. As such, the Commission dismisses events (1), (2), and (4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Claim of Harassment
As such, the Commission will examine Complainant's claim of harassment solely based on the events raised in (3), (5), and (6). It is well-settled that harassment based on an individual's race, sex, color, and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, sex, color and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. . See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). Upon review, the Commission finds that Complainant has failed to establish that he was subjected to harassment.
As to events (3) and (5), Complainant indicated that on or about May 14, 2010, he was given work outside of his restrictions and that the Agency refused to honor his medical restrictions since January 2010. He summarily stated without providing supporting evidence that others outside of his protected classes are given work within their restrictions and are given preferential treatment. Management averred that they believed Complainant was given work within his restrictions noting that his physician limited him to lifting no more than 25 pounds. Based on the evidence in the record, Complainant has not established that he was in fact given work outside of his restrictions or that the Agency's actions were based on his protected bases.
The Commission turns to event (6) where Complainant asserted he was exposed to HIV/AIDS while working outside of his restrictions. Complainant indicated that on or about July 3, 2010, he was exposed to HIV antigens because he was assigned the day HIV/AIDS and other biological testing samples were being processed. He noted that the packages were not properly labeled and the container fell apart and opened. He also claimed that he was not provided with protective gear or prompt medical attention. Again, he summarily stated that others outside of his protected classes were given preferential treatment. In response to Complainant's claim, Management averred that protective gear is always available to employees who request it. Further, Management noted that Complainant was working the manual letter operation station when, on that day, he came across the HIV/AIDs testing packages which were with the rest of the mail. Upon review, we find that Complainant has not shown that the alleged event occurred because of his protected bases. Therefore, we cannot find that Complainant established his claim of harassment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (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
August 17, 2012
__________________
Date
1 We note that Complainant initially filed his appeal with the Commission on November 30, 2011; however, it was erroneously not docketed. Subsequently, Complainant re-submitted his appeal in March 2012. That submission was docketed as the instant appeal. Therefore, we find that Complainant's appeal was timely filed.
2 Complainant had initially alleged the basis of national origin. During the Agency's investigation, he advised the Agency that he was no longer raising a claim of discrimination based on national origin.
3 Complainant also alleged that the Agency subjected him to discrimination on the basis of disability when he was not given work within his limitations. The Agency noted that Complainant's assignment was made pursuant to the Agency's National Reassessment Program (NRP). The Agency indicated that his claim of disability based discrimination would be subsumed in the class complaint McConnell v. U.S. Postal Serv., Agency No. 4B-140-0062-06. Therefore, this decision will not address Complainant's claim of disability based discrimination.
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0120121815
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121815