0120151685
10-02-2015
[Complainant], a/k/a Cleora W.1 [Complainant], a/k/a Cleora W.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
[Complainant], a/k/a
Cleora W.1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120151685
Agency No. 4G-760-0031-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 13, 2015, dismissing a formal 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 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 Postal Support Employee at the Agency's Euless, Texas Post Office.
On November 12, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On February 21, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, sex, age, and in reprisal for prior EEO activity when:
1. on November 3, 2014, she became aware of the completion of the agreement between the APWU and the Agency, and she had not been converted to a career employee;
2. on November 12, 2013, her 473 Battery Test and Physical Requirement was removed from her eOPF [Official Personnel File] causing her name to be eliminated from the seniority register ("outside of register");
3. on November 12, 2013, the Agency completed Employee Compensation and Benefits with RTR report in eOPF [Official Personnel File] showing her 1980 through 2008 lost work hours;
4. on December 15, 2014, she received a personnel action stating termination effective December 5, 2014; and
5. she was not issued a paycheck for hours worked, from November 25, 2014 through December 8, 2014.
In its March 13, 2015 final decision, the Agency dismissed claims 1 and 2 for stating the same claims that were raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claims 1 and 2 raise the same matter in the following Agency Case No.: 4G-760-0031-14.
The Agency also dismissed claims 2 and 3 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 November 12, 2014, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed claim 4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved.
Regarding claim 5, the Agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness. The Agency noted that due to a processing error on the paperwork that followed Complainant's contractual break in service, her paycheck was delayed. The record reflects that Complainant was issued a pay advancement immediately after she notified management that her check was missing. The Agency therefore determined that there was no reasonable expectation that the alleged actions would recur.
In addition, the Agency noted that a review of the instant formal complaint, Complainant also expressed her dissatisfaction with the EEO Counselor's processing of her EEO claims. For instance, the Agency stated "in reviewing your formal complaint, it is noted that you also expressed your dissatisfaction with your counselor's processing of your EEO claims. Your allegation has been referred to the Manager, EEOC Compliance and Appeals, Southern Area, [provided Dallas, Texas address]. The Manager, EEO Compliance and Appeals is the agency official responsible for processing such allegations in accordance with 29 C.F.R. 1614.504. The Manager of EEO Compliance and Appeals will look into your allegation and you will be issued a separate document concerning your complaints raised in regards to the counseling process."
The record contains a copy of a document entitled "Dismissal of Spin Off Complaint" dated March 16, 2015 concerning Complainant's dissatisfaction with the EEO Counselor's processing of her EEO claims. Therein, the Manager, EEO Dispute Resolution notified Complainant that the Agency "will not process your new claims as a separate complaint. Title 29, Code of Federal Regulations, Part 1614.107(a)(8) provides for the dismissal of spin-off complaints, which are complaints about the processing of existing complaints. It provides instead that complaints about the processing of existing complaints should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. In the Southern Area, Region 2, I am that individual. Your allegation clearly falls within the meaning of this regulation."
Complainant, on appeal, argues that she is subjected to ongoing harassment. As a remedy, Complainant requested the harassment cease; a conversion to a career status or reinstatement to her previous position; back pay plus benefits and interest; compensatory damages; and corrective action against the responsible management officials.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 and 2 (stating the same claims)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission.
Here, the Agency dismissed claims 1 and 2 on the grounds that the matter raised therein is the same matter that was raised in a prior formal complaint (Agency Case No. 4G-760-0031-14) alleging the same claims. We note, however, the record does not contain a copy of the above mentioned prior complaint indicating Complainant had pursued the same matter in a prior complaint on the bases of race, sex, age and in reprisal for prior EEO activity. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). We note that in her complaint and on appeal, Complainant stated that she is subjected to ongoing harassment. Because the matter identified in claims 1 and 2 is part of that harassment claim, we find that the Agency improperly dismissed claims 1 and 2 for stating the same claims were raised in a prior EEO complaint.
Claims 2 and 3 (untimely EEO Counselor contact)
The Agency also improperly dismissed claims 2 and 3 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on November 12, 2014. 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)).
Various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's November 12, 2014 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claims 2 and 3 is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.
Claim 4 (failure to state a claim)
The Agency fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim 4 for failure to state a claim. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from November 2013 through the present.
As mentioned above, Complainant requested that the harassment cease; a conversion to a career status or reinstatement to her previous position; back pay plus benefits and interest; compensatory damages; and corrective action against the responsible management officials. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Mootness (claim 5)
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
Therefore, we find that when viewing the subject claim in the context of the purportedly hostile work environment articulated by Complainant, the record does not support a determination that two prongs of the County of Los Angeles v. Davis test have been met. Complainant has specifically alleged that it is very likely that the alleged discriminatory harassment will continue to occur.
Finally, regarding Complainant's "spin off" claims, it appears that these matters were referred to the self-acknowledged Agency official as identified in the above referenced correspondence, dated March 16, 2015. We therefore find no further need to address this issue.
However, we REVERSE the Agency's final decision dismissing Complainant's formal complaint (claims 1 - 5), 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 (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 Complainants' 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
October 2, 2015
__________________
Date
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.
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