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

Equal Employment Opportunity Commission

Mar 20, 2013

0120114292 (E.E.O.C. Mar. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120114292

Agency No. 4E-553-0024-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
August 23, 2011, dismissing his complaint of unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq. Upon review, the Commission finds that Complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Automotive
Technician at the Agency’s Vehicle Maintenance Facility in St. Paul, Minnesota. On August
5, 2011, Complainant filed a formal complaint alleging that he was subjected to an ongoing
hostile work environment on the basis of disability by two co-workers.

On August 23, 2011, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(2) for untimely EEO counselor contact. The Agency determined that alleged
incidents began in December 2004 and lasted through March 20, 2011. Complainant did not
contact an EEO Counselor until May 5, 2011, which was beyond the limitation period. As a
result, the Agency dismissed the complaint as untimely. In the alternative, the Agency
dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
The instant appeal followed. Complainant failed to submit any arguments or contentions on
appeal.
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ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint
or a portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in
accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(l) provides that an
aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the
effective date of the action.

The Supreme Court has held that a hostile work environment claim is an amalgamation of
incidents that “collectively constitute one unlawful employment practice.” Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Unlike discrete acts, the incidents that
comprise a hostile work environment claim “cannot be said to occur on any particular day”
and by their “very nature, involve repeated conduct.” Id

. at 115. Because a hostile work
environment claim is comprised of various incidents, the entire claim is actionable if at least
one incident occurred within the filing period.
Here, the record reveals that Complainant alleged that several of his co-workers have subjected
him to ongoing harassment. Complainant claims that most recently, on May 5, 2011, a co-
worker used numerous expletives when referring to him and accused him of doing nothing.
That same day, Complainant alleges that another co-worker glared at him while he worked on
a truck and later sneered at him while clenching his teeth. In other incidents, Complainant
claims that co-workers swore at him, made vomiting noises at him, and hit him with an
automotive tie. Complainant claims that he notified management of these and similar
incidents, but nothing was done about the behavior. Complainant believes that management is
encouraging employees to harass him because of his disability and medical restrictions.
Further, Complainant alleges that the harassment forced him to take sick leave because of
stress and contributed to his heart attack earlier in the year.

Because a fair reading of the record reflects that the most recent incident occurred on May 5,
2011, and Complainant contacted an EEO counselor that same day, the Commission finds that
the Agency improperly dismissed the complaint on the grounds of untimely EEO Counselor
contact. Additionally, the formal complaint and pre-complaint documents reveal that
Complainant has alleged a pattern of harassment based on his disability and has thus stated a
cognizable claim under EEOC regulations.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

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ORDER (E0610)

The Agency is ordered to process the remanded hostile work environment claim 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.

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:

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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 (Nov. 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
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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 20, 2013
Date