0520120282
09-22-2015
Complainant v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520120282
Appeal No. 0120114006
Agency No. 4E-800-0120-11
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120114006 (January 30, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request.
BACKGROUND
In our previous decision, we affirmed the Agency's dismissal of Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). We noted that Complainant alleged discrimination based on race and reprisal when his requests for Family and Medical Leave Act (FMLA) leave were improperly recorded as sick leave. We also noted that Complainant failed to allege harassment that was sufficiently severe or pervasive to alter the conditions of his employment. We therefore found that Complainant was not aggrieved for the purposes of stating claim under the Commission's regulations.
Our previous decision did not address the Agency's separation of Complainant's complaint into two claims. The Agency's final decision noted that Complainant alleged discrimination based on race (African-American) and reprisal for prior protected EEO activity when:
1. on February 8-10, 2011, his request for FMLA leave was improperly processed and recorded; and
2. on March 29-31, 2011, his request for FMLA leave was improperly processed and recorded.
The Agency's final decision dismissed claims 1 and 2 for failure to state a claim, finding that Complainant lodged a collateral attack on the proceedings of another forum. However, the Agency's final decision also alternatively dismissed claim 1 for untimely EEO counselor contact, which our previous decision did not address. Therein, the Agency noted that Complainant alleged that his FMLA leave was improperly processed on February 8, 2011, but did not contact an EEO counselor until May 5, 2011. The Agency noted that Complainant's EEO contact was outside the 45-day limitation with regard to claim 1.
In his request for reconsideration, Complainant contends that our previous decision incorrectly addressed his complaint as alleging harassment. Complainant contends that he instead alleged that he was treated in a disparate manner when his requests for FMLA leave were denied by management. Complainant contends that employees outside of his protected classes had their FMLA leave requests approved. Complainant contends that he was denied FMLA leave within months of his previously filed EEO complaints.
ANALYSIS
After reconsidering the previous decision, the entire record, and Commission precedent, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to GRANT the request. We find that the previous appellate decision involved a clearly erroneous interpretation of material fact or law.
EEO Counselor Contact (Claim 1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
On appeal of our previous decision, Complainant asserted that he did not become aware until March 28, 2011, that management's February 8-10, 2011, denial of his FMLA leave was discriminatory. Complainant asserted that a Caucasian coworker's FMLA leave was granted at the same time his was denied in February. Complainant asserted that he did not believe management's denial of his February FMLA leave was discriminatory because the Caucasian coworker had been going through a traumatic life event. Complainant asserted that he did not suspect discrimination until his FMLA leave was denied a second time on March 28, 2011, and another Caucasian coworker's FMLA leave was granted. We note that the Agency did not respond to Complainant's contentions on appeal.
Based on an application of the reasonable suspicion standard, we find that the Agency erred in dismissing claim 1 for untimely EEO counselor contact. Complainant contacted an EEO counselor on May 5, 2011, within 45 days of when he reasonably suspected discrimination. We find this contact was timely made. Therefore, we find that the Agency improperly dismissed claim 1 for untimely EEO counselor contact.
Failure to State a Claim (Claims 1 and 2)
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
We note that our previous decision addressed Complainant's complaint as an allegation of harassment. However, a fair reading of the complaint reflects that Complainant asserted that other employees of different races were treated more favorably than him. Complainant asserted that his requests for FMLA leave were denied by management, while other employees had their requests granted. Complainant asserted that he was treated differently because of his race and in retaliation for other EEO complaints that he filed.
We find that Complainant's allegations are sufficient to state a viable claim of disparate treatment under the administrative EEO complaints process. We note that the Commission does not have jurisdiction over claims under the Family and Medical Leave Act. However, as is the case here, the Commission does have jurisdiction in cases involving claims of discriminatory application of FMLA provisions based on an employee's membership in a protected class. The Commission has recognized a claim of discriminatory denial of leave under the FMLA. See Cyncar v. U.S. Postal Serv., EEOC Appeal No. 0720030111 (Feb. 1, 2007), req. for recon. den'd, EEOC Request No. 0520070348 (May 1, 2007) (citing Urquidez v. U.S. Postal Serv., EEOC Appeal No. 01A30793 (Apr. 2, 2003)). We find that Complainant has sufficiently alleged a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Consequently, we find that our previous decision clearly erred when it affirmed the Agency's dismissal of Complainant's complaint.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that complainant's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120114006 is VACATED and the agency's final decision is reversed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
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.
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 (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, Director
Office of Federal Operations
September 22, 2015
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