0120101959
05-10-2011
Jeffrey A. Warner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Jeffrey A. Warner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101959
Agency No. 4E-680-0018-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated March 25, 2010, 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
On March 5, 2010, Complainant filed a formal complaint. Therein,
Complainant claimed that he was the victim of unlawful employment
discrimination on the bases of disability (shoulder) and in reprisal
for prior protected activity.
On March 25, 2010, the Agency issued a final decision. Therein, the
Agency determined that the instant formal complaint was comprised of
eight claims, that the Agency identified as follows:
1. On May 27, 2009, Complainant’s work hours and schedule were modified;
2. On at least three occasions between August 27, 2009 and November 11,
2009, Complainant’s supervisor required medical documentation before
Family Medical Leave Act (FMLA) leave requests could be approved;
3. On September 5, 2009, the Agency instructed Complainant to submit
FMLA requests numerous times for the same injury;
4. On September 21, 2009, the Agency instructed Complainant to continue
his work with his left hand;
5. On an unspecified date, the Agency did not permit Complainant to meet
with his workers compensation nurse during working hours;
6. On November 9, 2009, Complainant’s supervisor (S1) gave him mediation
papers to take to mediation;
7. On or about November 11, 2009, the EEO counselor failed to provide
mediation documentation on how to prepare for mediation; and
8. On January 8, 2010, the Agency initially charged Complainant with
leave without pay (LWOP) before converting it to sick leave upon being
notified by Complainant.
In its March 25, 2010 decision, the Agency dismissed the formal complaint
on several grounds. The Agency dismissed Claims (2) – (8) for failure
to state a claim. Further, the Agency dismissed Claims (1) and (5)
as vague and lacking in specificity. The Agency dismissed Claim (7)
on the grounds that it expressed dissatisfaction with the EEO process
and was not raised with an EEO Counselor. Moreover, the Agency dismissed
claims (1) – (4) on the grounds that Complainant failed to timely raise
these matters with an EEO Counselor. The Agency also dismissed Claim
(3) as constituting a collateral attack on the FMLA process.
CONTENTIONS ON APPEAL
On appeal, complainant restates the events set forth in his formal
complaint. In response, the Agency argues that it properly dismissed
the instant complaint.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An Agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, 1614.106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC
Req. No. 05931049 (Apr. 21, 1994).
Claims (1) – (6) and (8)
The Commission notes that harassment of an employee that would
not occur but for the employee's race, color, sex, national origin,
age, disability, religion or prior EEO activity is unlawful, if it is
sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC
Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d
1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris
v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a
working environment is hostile, factors to consider are the frequency
of the alleged discriminatory conduct, its severity, whether it is
physically threatening or humiliating, and if it unreasonably interferes
with an employee's work performance. See Harris v. Forklift Svs., Inc.,
510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court
has stated that: “Conduct that is not severe or pervasive enough to
create an objectively hostile work environment - an environment that a
reasonable person would find hostile or abusive - is beyond Title VII's
purview.” Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, Complainant
must show that: (1) he belongs to a statutorily protected class: (2) he
was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of
was based on her statutorily protected class: (4) the harassment affected
a term or condition of employment and or had the purpose or effect of
unreasonably interfering with the work environment and or creating an
intimidating, hostile, or offensive work environment; and (5) there is a
basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance at 6.
Upon a review of the record, we find that Complainant has asserted a
viable claim of harassment. The totality of the matters alleged in
Claims (1) – (6) and (8) are sufficiently severe and pervasive enough
to state a claim.
As noted above, the Agency dismissed the formal complaint on alternate
grounds. Claims (1) – (4) were dismissed for untimely EEO Counselor
contact. In doing so, we find that the Agency improperly analyzed the
complaint by fragmenting it into its individual allegations. A fair
reading of the allegations in the instant complaint, as well as the
related EEO counseling report, reveals that Complainant is, in essence,
raising a complaint of ongoing harassment that led up to and included his
eventual placement on LWOP. 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 Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). Complainant was charged
with LWOP on January 8, 2010. His initial contact with an EEO counselor
occurred on January 14, 2010. Thus, Complainant timely alleges at least
one event as part of his hostile work environment.
The Agency also determined that Claims (1) and (5) were vague.
We determine, however, that these matters were articulated with a
reasonable degree of specificity, and are sufficient to be construed as
part of Complainant’s hostile work environment claim.
Claims (7)
Complainant alleges the EEO Counselor assigned to process his
complaint violated EEO regulations in doing so. Complainant is alleging
dissatisfaction with the EEO process, and the Agency properly dismissed
this claim pursuant to 29 C.F.R. § 1614.107(a)(8).1 However, even
though Complainant’s concerns do not give rise to an actionable claim,
the Agency has a duty to address this matter. EEO MD-110, Ch. 5,
§ IV. D provides, in pertinent part, the following: “The Agency
official responsible for the quality of complaints processing must add
a record of the complainant’s concerns and any actions the Agency
took to resolve the concerns, to the complaint file maintained on the
underlying complaint. If no action was taken, the file must contain an
explanation of the Agency’s reason(s) for not taking any action.”
The record does not reflect what, if any, actions the Agency took to
address Complainant’s concerns. Consequently, in concern for the
integrity of the Agency’s EEO process, we order the Agency to provide
Complainant with a report of any actions it took to resolve his concerns
regarding the processing of his complaint, of an explanation of its
reasons for not taking action, in accordance with the ORDER below.
CONCLUSION
Accordingly, the agency’s decision dismissing Claims (1) – (6) and
(8) is REVERSED, and REMANDED to the Agency for further processing in
accordance with the order below. However, the Agency’s dismissal
of Claim (7) is AFFIRMED, but the matter is nevertheless REMANDED for
further action in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following Action:
1. Regarding claims (1) – (6) and (8), the Agency is ordered to process
these 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 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.
2. Within thirty (30) calendar days of the date that this decision
becomes final, the Agency official responsible for the quality of
complaint processing must add a record of Complainant’s concerns
(Claim 7), and any actions the Agency took to resolve the concerns, to
the complaint file maintained on the underlying complaint. The Agency
shall also provide Complainant with a report of any actions taken by
the Agency to resolve the concerns or an explanation of its reason for
not taking any action.
The Agency shall submit a copy of the report or its explanation to the
Compliance Officer 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).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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. If you file a request to reconsider
and also file a civil action, 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”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2011
__________________
Date
1 Because we affirm the dismissal of claim 7 for the reason stated herein,
we will not address alternative dismissal grounds.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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