Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionAug 14, 2014
0120141397 (E.E.O.C. Aug. 14, 2014)

0120141397

08-14-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120141397

Hearing No. 550-2012-00212X

Agency No. 1F946003311

DECISION

On February 25, 2014, Complainant filed an appeal from the Agency's January 23, 2014 final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Motor Vehicle Operator at the Agency's Processing and Distribution Center in Oakland, California.

On December 29, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability and reprisal for prior protected EEO activity when:

during an unspecified time period, Complainant was subjected to unspecified acts of harassment, disparate treatment, hostile work environment, infliction of emotional distress, and threats, he was required to work outside of his medical restrictions, he was humiliated, and the Agency engaged in unspecified prohibited personnel practices.

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). Complainant timely requested a hearing.

By decision dated January 15, 2014, the AJ granted the Agency's September 14, 2012 Motion to Dismiss, dismissing the complaint for stating the same claim as a previously-filed claim and for misuse of the EEO process. The Agency subsequently issued a final order adopting the AJ's decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

29 C.F.R. � 1614.109(b) provides that a complaint may be dismissed by an AJ during the hearing process on any of the grounds provided for in 29 C.F.R. � 1614.107. In turn, 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "same" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997).

In the instant complaint, Complainant alleged the following:

I have been subjected to continuing violations of harassment, disparate treatment, hostile work environment, infliction of emotional distress, threats, The [sic] Agency required me to work outside my medical restrictions, humiliation, prohibited personnel practices, disability discrimination, race discrimination, sex discrimination, protected activity discrimination, violations of medical restrictions, denied reasonable accommodation and other violations of my Constitutional and Civil rights, other unlawful acts, and unfavorable actions taken against me. . . .

The events that brought rise to my claims are as follows:

1. harassment,

2. disparate treatment,

3. hostile work environment,

4. infliction of emotional distress,

5. humiliation,

6. retaliation,

7. The Agency required me to work outside my medical Restrictions

8. failure to provide reasonable accommodations,

9. violations of constitutional and civil rights,

10. belittling me in front of other employees,

11. criticizing my work performance,

12. closely monitoring my work performance,

13. violation of my medical restrictions,

14. violations of the Americans With Disabilities Act,

15. violations of the Rehab Act,

16. violations of Veterans With Disabilities Rights

17. Other acts made unlawful by the Civil Rights Act of 1964 as amended.

Formal Complaint.

The AJ noted that on September 15, 2011, Complainant filed a complaint alleging "discriminatory harassment" under Agency No. 1F-946-0024-1l. That complaint was dismissed by the Agency on October 5, 2011 for failure to state a claim and untimely filing of the Formal Complaint. Complainant did not appeal the dismissal of 1F-946-0024-1l.

The AJ found that on September 21, 2011, while the earlier complaint (1F-946-0024-1l) was still pending, Complainant again sought EEO counseling and initiated the instant complaint, alleging the same "non-specific kitchen sink allegations" as in the earlier complaint. The AJ further found that in his affidavit in support of the instant complaint, Complainant failed to identify "a single incident of harassment or alleged wrongdoing of any sort which occurred following the disposition of his prior complaint" and that "there are no incidents of harassment involving complainant of any nature that were not addressed and disposed of in the agency's October 5, 2011 Decision which covered the same relevant time period." AJ's Decision, pp. 4, 5. The AJ stated, "It is undisputed that the complaints in both cases set forth a boiler plate or laundry list of legal conclusions about harassment and continuing violations which, on their face and insofar as their effect on complainant is concerned, defy interpretation and understanding. They are remarkable only for their lack of specificity." Id. (Citation omitted.)

Our review of the record supports that AJ's determination that Complainant's claim of "discriminatory harassment" had already been adjudicated in his earlier complaint (1F-946-0024-1l). We also note that the AJ provided Complainant with ample opportunity to present evidence that this was not the case. Therefore, we affirm the AJ's decision to dismiss this harassment claim pursuant to 29 C.F.R. � 1614.107(a)(1).

However, we note that during the investigation, Complainant was asked, "Did you request accommodation in or prior to October, 2011? If so, what did you request, when, and of whom?" Complainant responded "Yes, I have been requesting for [sic] accommodation from the Agency, and its Agents. To date the Agency has failed/refused to provide me with reasonable accommodation," Report of Investigation (ROI) Affidavit A, p. 2. This is sufficient to state a claim of denial of reasonable accommodation. In granting the Agency's motion to dismiss, the AJ also recognized this reasonable accommodation claim, but found no evidence that this disability claim was not also included in the Agency dismissal of the earlier complaint, which Complainant did not appeal.

However, the record on appeal includes only a copy of the Agency's Dismissal of the prior complaint, but not the Formal Complaint itself. That Dismissal indicates that the matter at issue in that complaint was "on May 23, 2011 you were told you would not be provided assistance to help with your duties." While disability was included as one of the bases of discrimination, the claim in that complaint, as framed by the Agency in its Dismissal, was not one of denial of reasonable accommodation. Nor does a review of the text of the Dismissal itself reveal that denial of reasonable accommodation was at issue. We note in this regard that one of the grounds for dismissal was failure to state a claim because Complainant could not show he incurred a harm or loss. Such a rationale is inapplicable to a claim alleging denial of reasonable accommodation. Because we find that the earlier complaint raised a matter of disparate treatment while the instant complaint includes an allegation of denial of reasonable accommodation, we find that the Agency has not met its burden1 of proving that the two claims are identical.

Furthermore, given the record on appeal, we are unable to find that Complainant misused the EEO process. Instead, the record on appeal indicates that Complainant filed a complaint on September 15, 2011 alleging disparate treatment on May 23, 2011, and a second complaint, on December 29, 2011, alleging, among other things, ongoing denial of reasonable accommodation. We do not find such behavior to constitute "misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination." See 29 C.F.R. � 1614.107(a)(9). However, while we find that Complainant has stated a claim of denial of reasonable accommodation, we find that the remainder of his allegations are too vague and incoherent to state valid claims of discrimination.

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 order in part and REVERSE in part, and we REMAND the denial of reasonable accommodation claim to the Agency to take remedial action in accordance with this decision and the Order below.

ORDER

The Agency shall submit to the Hearings Unit of the San Francisco District Office a request for a hearing (on the denial of reasonable accommodation claim only), as well as a copy of this decision, within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.

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).

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

August 14, 2014

__________________

Date

1 Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).

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0120141397

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120141397