0520120189
05-10-2013
E Ramel B. Cadag, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
E Ramel B. Cadag,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520120189
Appeal No. 0120113350
Agency No. 1E-981-0002-10
and
Appeal No. 0120110580
Agency No. 1E-981-0053-06
DECISION
Complainant filed a timely appeal from the Agency's September 24, 2010, final decision 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. Additionally, on December 12, 2011, Complainant timely filed a request for reconsideration of Appeal No. 0120113350.
ISSUE PRESENTED
The issue presented is whether the Agency's properly dismissed Complainant's constructive discharge claim on the ground that he untimely initiated EEO Counselor contact for the constructive discharge claim, notwithstanding that the claim was like or related to a complaint that was still under investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Distribution Operations, EAS-17, at the Agency's Processing and Distribution Center (P&DC) in Seattle, Washington.
On September 21, 2006, Complainant initiated EEO Counselor contact. On October 31, 2006, Complainant filed an EEO complaint (Agency No. 1E-981-0053-06) in which he alleged that he was discriminated against and harassed on the bases of race (Asian), national origin (Filipino), and color (brown) when:
1. On July 7, 2006, he was moved out of his assigned section to a new section and was not provided proper training;
2. On July 10, 2006, his days off were changed from Sunday/Monday to Tuesday/Wednesday;
3. On July 15, 2006, he was denied the day off to attend his niece's wedding;
4. On August 12, 2006, he was required to provide extensive Family Medical Leave Act (FMLA) medical documentation to visit his sick mother in the Philippines; and
5. On September 13, 2006, he was threatened with Absent without Leave (AWOL) for failure to provide FLMA documentation, which led to him being placed on Leave without Pay for sixteen hours.
The Agency dismissed claims 1 through 4 on the basis that they were initiated by untimely EEO Counselor contact and failed to state a claim. The Agency found no discrimination on claim 5. On August 25, 2007, Complainant appealed. On appeal, the Commission found that the Agency improperly dismissed Complainant's complaint because his complaint consisted of an actionable claim of harassment when viewed in its entirety, and Complainant raised claim 5 within the 45-day time limit. Cadag v. U.S. Postal Serv., EEOC Appeal No. 0120073754 (Sept. 30, 2009). The Commission concluded that the dismissed claims should be considered with claim 5 as a claim of ongoing harassment and remanded Complainant's complaint to the Agency for a supplemental investigation. The Commission further noted that Complainant raised a constructive discharge claim on appeal, and that he could raise this new claim of discrimination with an EEO Counselor within 45 days of the date he knew or should have known of the alleged discrimination.
Complainant retired from the Agency effective May 2, 2007. On October 18, 2009, Complainant initiated EEO Counselor contact and alleged that the Agency had constructively discharged him. In a correspondence dated October 19, 2009, Complainant asked the Agency to amend Agency No. 1E-981-0053-06 to include his constructive discharge claim. The Agency found that Complainant's constructive discharge claim was like or related to the matters raised in Agency No. 1E-981-0053-06, and therefore, Complainant's complaint was amended to include the constructive discharge claim. However, the Agency further found that Complainant untimely raised the constructive discharge claim with an EEO Counselor. In so finding, the Agency noted that Complainant was aware of his constructive discharge claim when he submitted an appeal statement to the Commission on August 25, 2007, but did not raise the claim with an EEO Counselor until October 19, 2009.
On February 17, 2010, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding his constructive discharge. On August 5, 2010, the MSPB dismissed Complainant's appeal on the basis that it lacked jurisdiction over this matter; this decision was upheld in an MSPB appellate decision on March 29, 2011. In a decision dated September 24, 2010, the Agency issued a final decision on Agency No. 1E-981-0053-06. In that decision, the Agency reiterated its dismissal of Complainant's constructive discharge claim and addressed the merits of claims 1 through 5. Specifically, the Agency found that Complainant failed to prove that he was subjected to unlawful discrimination or harassment with respect to claims 1 through 5.
On November 1, 2010, Complainant filed an appeal of the Agency's September 24, 2010, final decision. This appeal was docketed as EEOC Appeal No. 0120110580. In his appeal statement, Complainant argues that the Agency improperly found that he failed to prove that he was subjected to unlawful harassment or discrimination with respect to claims 1 through 5.
Meanwhile, on April 11, 2011, the Agency issued Complainant a Notice of Right to File with respect to his constructive discharge claim, and on May 2, 2011, Complainant filed an EEO formal complaint (Agency No. 1E-981-0002-10) in which he also alleged that he was subjected to unlawful discrimination when the Agency constructively discharged him. However, in a decision dated May 27, 2011, the Agency again dismissed Complainant's constructive discharge claim on the basis that it was initiated by untimely EEO Counselor contact. Complainant appealed this decision. The Appeal was docketed as EEOC Appeal No. 0120113350.
In our previous decision, the Commission found that the Agency properly dismissed Complainant's constructive discharge claim on the basis that it was initiated by untimely EEO Counselor contact. Cadag v. U.S. Postal Serv., EEOC Appeal No. 0120113350 (Nov. 18, 2011). In so finding, the Commission rejected Complainant's assertion on appeal that he did not develop a reasonable suspicion that he had been constructively discharged until he received the Commission's September 30, 2009, decision. "Complainant had or should have had a reasonable suspicion of unlawful employment discrimination regarding his constructive retirement by May 2, 2007," the Commission concluded. Cadag, EEOC Appeal No. 0120113350, p. 3.
On December 12, 2011, Complainant filed a request for reconsideration of Appeal No. 0120113350. This request was docketed as EEOC Request No. 0520120189. In his request for reconsideration, Complainant argues that the Agency improperly erred when it dismissed his constructive discharge claim on the basis that it was initiated by untimely EEO counselor contact. Complainant maintains that, because his constructive discharge claim is related to his hostile work environment claim, it is not time-barred and should not be dismissed.
ANALYSIS AND FINDINGS
As an initial matter, we determine that Appeal No. 0120110580 and Request No. 0520120189 concern interrelated matters. Therefore, in the interest of administrative judicial economy, we will address both matters in this decision.
Upon review, we note that, at any time prior to an agency's mailing of the notice required by 29 C.F.R. � 1614.108(f) at the conclusion of the investigation, � 1614.106(d) permits a complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. EEOC Equal Employment Opportunity Management Directive for 29 C.F.R Part 1614 (MD-110), Chap. 5, Section III.B, at 5-9, 5-12 (Nov. 9, 1999). Moreover, and of note here, there is no requirement that the complainant seek counseling on these new claims. Id.
In this case, the Agency properly found that Complainant's constructive discharge claim was like or related to his hostile work environment claim. Further, the Agency properly amended Agency No. 1E-981-0053-06 to include the like or related constructive discharge claim.
However, we find that the Agency then improperly dismissed Complainant's constructive discharge claim as initiated by untimely EEO counselor contact. As noted, MD-110 states that there is no requirement that a complainant seek counseling on claims that are like or related to matters raised in a pending complaint. Because MD-110 and � 1614.106(d) do not require complainants to seek counseling to amend complaints with like or related claims, there cannot be a time limit to contact an EEO counselor for such claims. Thus, we find that the Agency's September 24, 2010, final decision improperly dismissed Complainant's constructive discharge claim on the basis that it was initiated by untimely EEO Counselor contact. See Gillins v. U.S. Postal Serv., EEOC Appeal No. 0120083145 (Feb. 4, 2011) (Agency should not have dismissed claim for untimely EEO Counselor contact because it was like or related to another issue and therefore did not require new EEO Counselor contact); Braxton v. U.S. Postal Serv., EEOC Appeal No. 0120102410 (Oct. 29, 2010) (because there is no requirement to seek or receive counseling for a like or related amended claim, there is also no requirement that the complainant seek or receive counseling on these new claims).
The Agency's improper dismissal of Complainant's constructive discharge claim means that Complainant's ongoing harassment claim was not addressed in its entirety. Because it does not address the merits of Complainant's constructive discharge claim, the Agency's decision on the merits of claims 1 through 5 fragments Complainant's claim that he was subjected to ongoing harassment. The Commission has consistently held that when confronted with claims like this, the Agency cannot ignore the pattern aspect of the claim and define the issues in a piecemeal manner. See Ferguson v. Dep't of Justice, EEOC Request No. 05970792 (Mar. 30, 1999); Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov.3, 1994).
CONCLUSION
Therefore, in the interest of fundamental fairness and in order to avoid the continuing fragmentation of Complainant's complaint, we VACATE the Agency's finding that Complainant was not subjected to unlawful discrimination with respect to claims 1 through 5. We REVERSE our previous decision in Appeal No. 0120110580 affirming the Agency's dismissal of Complainant's constructive discharge claim. This matter is REMANDED to the Agency for further action consistent with this decision and the ORDER set forth below.
ORDER
The Agency is ordered to conduct a supplemental investigation of Complainant's constructive discharge claim, which shall include the following actions:
1. The Agency shall ensure that the investigator completes a supplemental investigation within ninety (90) calendar days of the date this decision becomes final. The Agency shall issue Complainant a copy of the new Report of Investigation that includes all matters in Complainant's ongoing harassment claim, including the claim of constructive discharge.
2. Within sixty (60) calendar days of the issuance of the new Report of Investigation, the Agency shall issue a new final decision on all of Complainant's ongoing harassment allegations that includes a notice of Complainant's appeal rights in accordance with 29 C.F.R. � 1614.110(b).
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.
As regards Appeal No. 0120110580 only:
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").
As regards Request No. 0520120189 only:
STATEMENT OF RIGHTS - ON RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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.
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
May 10, 2013
Date
2
0120110580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120189, 0120110580