0120180287
01-12-2018
Isaiah P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isaiah P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120180287
Agency No. 4G700010317
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 10, 2017, 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. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor for Customer Service, (EAS-17) at the Agency's Bertrand Station in Lafayette, Louisiana.
On September 18, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for engaging in protected EEO activity (Agency No. 4G700005517, filed on February 28, 2017) when:
On or about April 17, 2017, the Postmaster instructed a supervisor who was transporting him to the hospital to pull the vehicle over, and wait for an ambulance to transport him the remainder of the way.2
On or around April 17, 2017, Complainant experienced a spike in blood pressure during a contentious meeting with the Manager, Post Office Operations ("MPOO"). When he could not get his blood pressure to go down, Complainant asked a colleague ("C1"), to drive him to the nearest hospital approximately one mile away. While they were en route to the hospital, Complainant's first level supervisor ("S1") the acting Station Manager that day, called C1 and instructed him to pull over and wait for an ambulance to transport Complainant the rest of the way to the hospital. S1 explained that she was acting on the instructions of the Postmaster, Complainant's second level supervisor ("S2"), who told her that since Complainant was experiencing a heart-related medical incident, the proper protocol would be to have experienced medical professionals handle the situation. On appeal, Complainant states that he disagreed with this course of action because the hospital was so close and it took an additional 15 minutes to wait for the ambulance to arrive. However, at the time he did not find S1's instruction unreasonable, since she explained that S2 was following "proper protocol."
Then, on May 6, 2017, one of the clerks Complainant supervised experienced pain in her left arm, left leg and lower back, having injured her back the day before. She asked to go to the hospital, so Complainant, in accordance with Agency protocol, reported the medical emergency to the MPOO. Rather than wait for an ambulance, Complainant was instructed to drive the clerk to the hospital himself, which he did in an Agency vehicle. According to Complainant, this apparent difference in "protocol" prompted him to file the instant complaint.
The Agency dismissed Complainant's complaint for untimely contact with an EEO counselor, pursuant to 29 C.F.R. � 1614.107(a)(2).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides 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. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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 Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
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. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)).
The alleged discriminatory event occurred on April 17, 2015, but Complainant did not initiate contact with an EEO Counselor until June 13, 2015, which is beyond the 45 day limitation period. On appeal, Complainant argues that the Agency erroneously attributes the start of the limitation period to the date of the alleged discriminatory act, April 17, 2017, when he "did not know nor could he have reasonably known that the Agency's action was discriminatory in nature." Instead, Complainant asserts that the limitation period should be calculated based on the date his reasonable suspicion of discrimination was triggered, May 6, 2017. He also alleges that four other comparator employees experiencing medical emergencies were transported to the hospital by supervisors, and, unlike Complainant, these employees were not made to wait for an ambulance. These incidents were mostly the result of on the job injuries, although one employee had "heart issues" similar the symptoms Complainant described. The incidents also took place from mid to late June 2017 through August 2017, after Complainant initiated EEO contact.
The Agency dismisses Complainant's argument, noting that this Commission has long held that "the discovery of a new comparator does not give rise to a new complaint of discrimination." Citing Gunn v. United States Postal Serv., EEOC Appeal No. 0120100031 (Mar.18, 2010); Miller v. United States Postal Serv., EEOC Appeal No. 0120080981 (Mar. 7, 2008). While this may apply to some of the comparators presented by Complainant, it does not apply where the alleged comparator is cited as the trigger for reasonable suspicion. It is well established that a complainant may not have a reasonable suspicion of discrimination until the agency treats a coworker outside complainant's protected class(es) differently. See, e.g. Duplessis v. United States Postal Serv., EEOC Appeal No. 0120052490 (Jun. 15, 2005) (complainant had reasonable suspicion of discrimination only when she returned to work, after being sent home and placed in a non-duty/non-pay status for wearing a surgical shoe, and noticed another employee wearing the same type of shoe on the work room floor); Bingham v. United States Postal Serv., EEOC Appeal No. 0120050221 (Feb. 25, 2005) (complainant did not suspect supervisor's denial of her request for an 11:00 am start time in March 2004 was based on discriminatory animus until May 20, 2004, when the supervisor granted a request for an 11:00 am start time to an individual outside the complainant's protected class); see also Swanigan v. United States Postal Serv., EEOC Appeal No. 0120033469 (Mar. 31, 2004); Gladden v. Dep't of the Treasury, EEOC Appeal No. 0120015024 (Dec. 14, 2001); Gadsden v. Dep't of the Army, EEOC Appeal No. 0120005418 (Apr. 13, 2001).
The Agency has not provided evidence that reasonable suspicion existed for Complainant prior to his experience transporting the clerk to the hospital on May 6, 2017. Moreover, the Agency has not disputed that for purposes of triggering reasonable suspicion, the clerk Complainant transported on May 6, 2017 could constitute a comparator employee, similarly situated to Complainant. Therefore, we find that the 45 day limitation period was triggered on May 6, 2017, making Complainant's initial June 13, 2017 EEO contact timely.
CONCLUSION
Accordingly, we REVERSE the Agency's dismissal of Complainant's complaint as untimely, and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant's Formal Complaint identifies the date as April 7, 2017.
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