01a52672
10-21-2005
Dwon K Guvenir, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dwon K Guvenir v. United States Postal Service
01A52672
October 21, 2005
.
Dwon K Guvenir,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52672
Agency No. 4E-970-0128-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 4, 2005, dismissing his 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. Sec. 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of national origin (Turkish) and reprisal for prior EEO
activity when:
on September 24, 2001, his Federal Auto Accident Report Forms were
falsified;
from September 25, 2001 - March 21, 2002, he was scheduled to work until
6:30 p.m. the nights of his 6:00 p.m. Emergency Medical Technician (EMT)
classes;
in the Spring of 2002, his duty hours were changed to 10:00 a.m. -
6:30 p.m;
in January, 2003, his Office of Workers' Compensation Program (OWCP)
forms were falsified;
on December 4, 2003, he was directed to file the wrong form to report
a hazardous working condition;
on January 12, 2004, he was subjected to a hostile work environment when
a supervisor confronted him and shouted profanities;
on May 4, 2004, he was placed on the Accident Repeater List;
on July 30, 2004, a copy of the office transfer opportunities listing
was left in his work area for him to find;
on August 13, 2004, he was ordered not to go to his doctor's appointment;
on September 8, 2004, he became aware that his supervisor did not report
vandalism to complainant's pickup truck, which occurred on January 29,
2004, to the Postal Inspectors;
on September 8, 2004, his supervisors accessed his medical records; and
on September 8, 14, and 30, 2004, he was subjected to four investigative,
disciplinary interviews.
On February 4, 2005, the agency dismissed complainant's complaint. The
agency dismissed claims (1)-(8) pursuant to 29 C.F.R. Sec. 1614.105(a)(1)
for failure to contact an EEO Counselor within 45 calendar days of the
date of the matter alleged to be discriminatory. Further, the agency
dismissed claims (8)-(12) pursuant to 29 C.F.R. Sec. 1614.107(a)(1) for
failure to state a claim. Specifically, the agency found that complainant
was not an �aggrieved employee� who has suffered a personal loss or
harm with respect to a term or condition or privilege of employment.
The agency found that complainant failed to allege how he was harmed
by the agency's acts, i.e. no discipline was issued, no monetary loss
suffered, and no changes were made in complainant's hours, wages and
other terms of employment.
ISSUE
Whether the agency was correct in dismissing complainant's
complaint pursuant to 29 C.F.R. Sec. 1614.105(a)(1) and 29
C.F.R. Sec. 1614.107(a)(1)?
BACKGROUND
Complainant is employed as a Letter Carrier with the Oregon City, Oregon
Post Office. In his complaint, complainant alleged that on September 8,
2004, after the first of four investigatory interviews, he discovered
a pattern of harassment beginning shortly after September 11, 2001,
engaged in by five supervisors. After the first investigatory interview,
complainant asked his supervisor about three previous incidents [claims
(7), (10), and (11)] and realized that he had been subjected to on-going
harassment because of his middle eastern heritage and the perception that
he was somehow associated with the terrorist attacks of September 11,
2001.
Believing he was a victim of discrimination, complainant sought EEO
counseling on September 20, 2004. Complainant filed a formal EEO
Complaint on October 29, 2004, alleging the above described claims.
As a remedy, complainant requests that his record be expunged of all
disciplinary actions, appropriate and positive work recommendations,
transfer (lateral or up) out of Oregon City and compensation for emotional
distress and the resulting physical manifestations including anxiety,
chronic sleeplessness and frequent migraines.
On appeal, complainant argues that the agency incorrectly applied the
law to the facts of this case and asks the Commission to reverse its
decision.
ANALYSIS AND CONCLUSION
Improper Fragmentation of Complainant's Claim
At the outset, we note that the agency dealt with each claim in a
piecemeal manner, and improperly fragmented complainant's claim.
The agency should not ignore the �pattern aspect�of the claims and
define them in a piecemeal manner where a common theme unites the acts.
Dobbins v. Department of the Army, EEOC Appeal No. 01A15248 (January 16,
2003) (citing Meany v. Department of Treasury, EEOC Request No. 05940169
(November 3, 1994).
The agency first dismissed claims (1)-(8) for untimely EEO counselor
contact, then dismissed claims (8)-(12) for failure to state a claim.
However, based on the factual allegations set forth in complainant's
formal complaint, the Commission finds that complainant's complaint
should be viewed as stating one on-going unlawful employment practice
claim, i.e. that the agency harassed complainant and created a hostile
work environment based on national origin. The continuing nature of
the alleged unlawful employment practice is suggested by complainant's
allegations against the same five supervisors who allegedly falsified
forms, changed complainant's hours so that he would miss his night
classes, stopped complainant from attending doctor visits and conducted
disciplinary investigatory interviews. As such, the Commission determines
that the agency improperly fragmented complainants claims.
Harassment
In determining whether a harassment complaint states a claim in cases
where a complainant has not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has examined whether a complainant's harassment claims, when considered
together and assumed to be true, were sufficient to state a hostile
or abusive work environment claim. See Estate of Routson v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (February
26, 1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has found that
claims of a few isolated incidents of alleged harassment usually are
not sufficient to state a harassment claim. See Phillips v. Department
of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Services, EEOC Request No. 05940481 (February
16, 1995). Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)( citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
The agency erred in dismissing the harassment claim pursuant to 29
C.F.R. Sec.1614.107 (a)(1). In the final agency decision, the agency
reasoned that complainant failed to show how he was an �aggrieved
employee�. Specifically, it found that �there is no evidence that [his]
claims have caused complainant to suffer any measurable personal harm,
i.e. no discipline was issued, complainant suffered no monetary loss,
there were no changes in hours, wages and/or other terms and conditions
of employment.� However, as stated above, a complainant has a claim
of harassment even if they produce no evidence of tangible effects, if
the events combined are severe or pervasive enough to create a hostile
work environment. Rideout, supra. Here, complainant's claims combined,
if taken as true, are severe and pervasive enough for him to state a
Title VII claim.
Timeliness
EEOC Regulation 29 C.F.R. Sec. 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an 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. Department of the Navy,
EEOC Request No. 05970852 (February 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.
Additionally, the Supreme Court has held that a complainant alleging a
hostile work environment will not be time barred if all acts constituting
the claim are part of the same unlawful practice and at least one
act falls within the filing period. See National Railroad Passenger
Corp. v Morgan, 122 S. Ct. 2061 (June 10, 2002). The Court further held,
however, that "discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed
charges." Id. Finally, the Court held that such untimely discrete acts
may be used as background evidence in support of a timely claim. Id.
In this case, we find that the allegations in the complaint comprise the
same unlawful practice, a claim of harassment. Complainant's allegations
implicate the same five supervisors who allegedly falsified forms, changed
complainant's hours so that he would miss his night classes, stopped
complainant from attending doctor visits and conducted disciplinary
investigatory interviews. In a statement incorporated by reference in
the complaint, complainant avers:
I have uncovered several illegal activities and other harassing events
which other employees do not have to deal with. The fact that I am
the only person of Middle Eastern descent working in the Oregon City
Post Office, and the fact that these events become greater around the
9-11 Anniversary show a direct relation to the harassment being based
on my nationality. The more I looked into the events of the past,
the more I realized a pattern of harassment from these five supervisors.
From the record, it seems clear that there is a common theme of national
origin discrimination. Specifically, the complainant contends that
the alleged violations began around the anniversary of September 11,
2001, because they perceived him to be of Middle Eastern descent.
Complainant has also clearly alleged that the discrimination recurred
on several occasions, most recently September 30, 2004 - the last of his
four investigatory interviews. As such, the Commission determines that
the agency improperly dismissed complainants claims.
The Commission finds that the agency erred in dismissing complainant's
claims for untimeliness. Complainant contacted the EEO Counselor
on September 20, 2004, and he alleges that he did not discover the
pattern of harassment until September 8, 2004, after the first of four
investigatory interviews. Thus, he contacted the EEO Counselor within
the 45 time period required by Sec. 1614.105(a)(1).
CONCLUSION
For the foregoing reasons, the agency's decision to dismiss complainant's
complaint was improper, and is hereby REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. Sec. 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 (K0501)
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 19848,
Washington, D.C. 20036. 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. Sec. 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. Secs. 1614.407, 1614.408, and 29 C.F.R. Sec. 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. Secs. 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. Sec. 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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. Sec. 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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
19848, Washington, D.C. 20036. 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. Sec. 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. Sec. 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney 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
October 21, 2005
__________________
Date