0120140273
03-14-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120140273
Agency No. 1E-981-0018-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 16, 2013, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the relevant period, Complainant worked as a Mail Handler at the Agency's Seattle, Washington Processing and Distribution Center (P&DC).
On August 6, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race and disability when:
1. on an unspecified date in 2009, his supervisor (S1) changed his leave from 8 hours of sick leave to 8 hours of annual leave;
2. in October 2012, S1 removed him from his limited duty assignments, as S1 claimed there was no supporting medical documentation which led Complainant having to provide additional medical documentation;
3. on November 6, 2012, he was charged Absence Without Leave (AWOL) and was not given an investigative interview to explain why he failed to call in that day;
4. in mid-November 2012, S1 gave a stand up talk and he believed that the supervisor referred to him when he stated that "a certain employee was not pulling their share of work" and also that he was going to be changing certain employees' days off and begin/end tour times;
5. on November 112, 2012, S1 told him that he could no longer work overtime/holidays based on his 2012 CA-17, therefore, he had to get a medical note that provided clarification which he presented on approximately a week later;
6. on or about February 22, 2013, S1 gave him a new job offer that did not contain any work in the opening unit and that changed his non-scheduled days and begin tour time;
7. on February 28, 2013, he informed S1 that he had pain in his knee and S1 instructed him to go back to work;
8. on March 11, 2013, he asked S1 if he could leave early at 10:00 p.m. because his knee hurt and he said he didn't care so he stayed until the end of his tour at 11:00 p.m.;
9. after he called off work on April 24, 2013, he was instructed to bring medical documentation to support his one day absence and upon his return, S1 told him that his sick leave usage was unacceptable; and
10. on July 2, 2013, S1 questioned why he was in a certain section of the facility (the South Lobby) and told him that he was not allowed to be there.
The Agency dismissed claims 1 - 8 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 - 8 raise the same matters for which Complainant filed an informal complaint but did not follow through with a formal complaint (Agency Case No. PRE-014939-2013).
The Agency also dismissed claims 1 - 10 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not state a claim of discriminatory harassment.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 - 10 (failure to state a claim)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 1 - 10 for failure to state a claim. A fair reading of his formal complaint, Complainant claimed that he was subjected to a series of related incidents of harassment from 2009 to present. For instance, Complainant stated that he was subjected to harassment by S1 starting "approximately 4 years ago [S1] acting as 1 day replacement for my regular supervisor changed 8 hours of requested sick leave to annual leave. I was not aware of change of leave until the following pay day when the pay check stub indicated 8 hours of annual leave I questioned [S1] on the unauthorized leave change + whether he had any knowledge of the change. He told me he didn't want to speak to me."
Complainant stated that when S1 became his supervisor, he was no longer assigned limited duty assignments. Complainant stated that when he asked S1 why he was not being assigned limited duty assignments, he "told me that he had no paperwork relating to my injury. The paperwork was missing. I provide management with the proper medical documentation. Annually, [S1] proceeded to explain hat 'I would no longer be allowed to get away with not working all assigned full duties.' I told [S1] that I had a copy of the missing CA17 dated 2012. He then told me that he would delay making the proposed duty changes until I provided the 2013 CA17. The wording [physician] has used during the previous 11 years remains consistent."
Further, Complainant stated that in November 2012, S1 informed him that he would no longer be allowed to work overtime "based on [S1's] understanding of the 2012 CA17 wording. I asked [S1] what CA17 working was he questioning. He did not offer any explanation of his decision...the 2012 CA17 was the exact same form that previous supervisors approved and allowed me to work overtime + holidays."
Complainant stated on one occasion S1 told him that he was not allowed to walk through the South Lobby Dock area "even though I was on break. I was not allowed to explain. Later at 6:05 pm, I approached [S1] to ask why certain employees were not allowed to walk through other areas while on scheduled breaks, he told me he would not talk about this now + for me to go back to work. Throughout the remainder of the shift, [S1] made no effort to respond to my question. This is an example of [S1's] disrespectful, demeaning + harassing attitude. He has repeatedly shown towards me whenever I ask a question or become inquisitive about his policy and his inconsistent enforcement with regards to myself + others in the section."
Complainant, on appeal, argues that he is still subjected to ongoing harassment by S1. For instance, Complainant stated while November 27, 2013 was his day off, he went to the Seattle P&DC to attend to an unresolved leave related issue. Complainant states that when he arrived at the facility, S1 "immediately questioned why I was in the building. As I began to explain, [S1] told me that he didn't care and that I was not allowed to be in the building." Complainant states that he then talked to a union steward and "it was suggested that I speak with [Senior Manager Distribution Operations (MDO)] on duty. During my speaking to [Senior MDO], I mentioned my difficulties with my supervisor. [Senior MDO] told me that [S1] was wrong for telling me that I was not allowed to be in the building. A short time later, my prime time leave work schedule issue was resolved."
As a remedy, Complainant requested that the harassment cease, that he receive compensatory damages, and "return to my previous days off (Sat/Sun) and previous start time (1450) and ET (2300)." 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).
Claims 1 - 8 (stating the same claim)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency.
The Agency improperly dismissed claims 1 - 8 stating that they are identical to the claims in his prior complaint. The record, however, does not contain a copy of Complainant's informal complaint under Agency No. PRE-014939-2013, as identified by the Agency in its final decision. We cannot determine whether claims 1 - 8 are identical to the claims previously raised by Complainant. Clearly, it is the burden of the agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a hostile work environment 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 (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
March 14, 2014
__________________
Date
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0120140273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140273
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