0120103107
12-21-2010
Joe A. Gonzales, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Joe A. Gonzales,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103107
Agency No. 1H391001810
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 4, 2010, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
The record shows that Complainant initially filed a complaint on October
28, 2009 under Agency case No. 1H-391-0027-09 (Complaint 1) alleging,
among other claims, denial of reasonable accommodation from April 2006 up
to the filing of the complaint. In a decision dated November 19, 2009
(Decision 1), the Agency found that Complainant had been provided an
accommodation and dismissed the complaint for failure to state a claim.
Complainant appealed and in a Decision dated June 3, 2010, the Commission
reversed Decision 1 and remanded the claim for an investigation of whether
or not Complainant was denied "modifications to his work schedule that
would accommodate his disabilities, resulting in him being charged
annual leave, sick leave, and LWOP; and his being charged at times,
annual leave and LWOP instead of sick [leave]." Gonzales v. United
States Postal Service, EEOC No. 0120100875 (Gonzales 1).
While Complainant's appeal of Decision 1 was pending, Complainant
contacted an EEO Counselor to initiate a second complaint on December
22, 2009. On March 11, 2010, the parties attended a mediation session
addressing both the matters addressed in Decision 1 and then-pending on
appeal before the Commission as well as new allegations of harassment,
denial of reasonable accommodation, and of being coerced into taking LWOP.
Complainant filed a second complaint on April 4, 2010 under Agency case
No. 1H-391-0002-10 (Complaint 2). In addition to claims of harassment,
denial of reasonable accommodation, and of being coerced into taking LWOP,
Complainant also raised numerous complaints alleging dissatisfaction
with the processing of Complaint 1. Indeed on page 5 of the addendum
listing his claims, Complainant stated "This request is a part of my
prior EEO claim (formal complaint dated October 28, 2009) to the agency."
Specifically, Complainant alleged that during the March 2010 mediation,
"the mediator, unilaterally selected and hired by [the Agency], altered
the terms of the agreement to mediate after the mediation took place."
Complainant further alleged that the parties reached settlement of some
of the issues, "however, the mediator refused to allow the agreement
on this issue to be memorialized or to allow the parties to speak to
higher authority about memorializing this issue when we requested it."
In addition, Complainant alleged as a complaint of discrimination
that a management witness had provided false testimony during an EEO
investigation.
On April 19, 2010, the Agency issued a Decision (Decision 2) addressing
the claims raised in Complaint 2. The Agency characterized Complainant's
claims as follows:
1) On April 17, 28, May 28, July 8, and November 12, 2009, management
misrepresented the facts as compared to the PS Form 2570 Inquiry Report;
(2) since April 2009 and continuing, you were denied an accommodation
to come to work with flexible hours; (3) on April 28, 2009, the agency
failed to offer you a full accommodation in accordance with your
physician's order and current request for permanent accommodation; (4)
on January 2006, you were harassed and delayed an offer of an inadequate
accommodation; (5) on November 20, 2006, you were coerced to take Annual
Leave and Leave Without Pay; (6) on January 3, 2010, the mediator would
not give you a copy of the agreement and instead altered the mediation
agreement; (7) on March 22, 2010, you were subjected to harassment in
that your inquiry report contained errors; and (8) on or about February
16, 2010, the manager told the supervisor not to correct the FMLA Sick
Leave enter [sic] which could have affected your leave balance
The Agency dismissed the claims for various reasons. First, the
Agency found that the complaint stated the same claim as Complaint 1.
The Agency also found that Complainant's Counselor contact was untimely,
that Complainant was not aggrieved, and that the actions complained of
were insufficiently severe to constitute harassment. Finally, with
regard to the complaints about the mediator altering the mediation
agreement, management "misrepresenting the facts," and harassment when
the inquiry report contained errors, the Agency dismissed those claims
on the grounds that Complainant was alleging dissatisfaction with the
processing of the complaint.
Complainant appealed Decision 2 on May 19, 2010, and in a decision
dated October 20, 2010, the Commission affirmed Decision 2. See Gonzales
v. United States Postal Service, EEOC Appeal No. 0120102476 (Gonzales 2).
Specifically, we noted that in Gonzales 1, we had found that Complainant
had alleged numerous instances of denial of reasonable accommodation
but that any allegations regarding denials prior to July 26, 2009 were
untimely, that Complainant had not requested reconsideration of that
decision, and therefore claims 2, 3, 4, and 5 from Gonzales 2, which
all alleged denials of reasonable accommodation predating July 2009,
were dismissed for stating the same claims as a previously filed claim.
With regards to claims 1 and 7, wherein Complainant alleged management
made false statements to the Counselor and the inquiry report contained
errors, we dismissed them for alleging dissatisfaction with the processing
of a previously-filed complaint and for failure to state a claim.
With regard to claims 6 and 8, we similarly found that they failed to
state a claim. Complainant subsequently requested reconsideration of
Gonzales 2 and that decision is currently pending.
On May 20, 2010, Complainant filed the instant complaint. In his
complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of national origin (Hispanic), disability
(sleep apnea), and reprisal for prior protected EEO activity under Title
VII and the Rehabilitation Act when:
1. On an unspecified date, management altered the Alternative Dispute
Resolution (ADR) agreement after mediation took place;
2. On an unspecified date, the mediator refused to memorialize the terms
of the partial settlement of the EEOC Appeal and Pre-Complaint reached
at the mediation;
3. On an unspecified date, the Report of Investigation (ROI) for a prior
complaint contained incorrect documentation and typographical errors;
4. On or about February 16, 2010, a manager (M1) informed Complainant
that another manager (M2) said he would not honor Complainant's written
request to correct Complainant's FMLA Sick Leave usage;
5. On or about March 11, 2010, M1 gave misleading information pertaining
to Complainant's working on the DBCS [sic] machine; and
6. On an unspecified date, M1 gave incorrect information during the ADR
session pertaining to taking breaks; and
In its June 4, 2010 decision, (Decision 3) the Agency dismissed Claims
1 through 5 for failure to state a claim and for stating the same claim
as a previously-filed complaint. In addition, the Agency found that
claims 1 through 3, and claim 6, should be dismissed for expressing
dissatisfaction with the processing of a previously-filed complaint.
ARGUMENTS ON APPEAL
On appeal, Complainant argues that he included specific dates for the
alleged incidents, as well as alleging how he was harmed, but that the
Agency failed to include such information in Decision 3 and used the lack
of specific dates and lack of harm to justify dismissing his claims.
Complainant next argues that the ADR process is separate from the
complaint process, and that while the applicable regulations and the
Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (Nov. 9, 1999) (EEO MD-110) both require dismissal of complaints
alleging dissatisfaction with the complaint process, they do not require
dismissal of complaints alleging dissatisfaction with the ADR process,
as Complainant makes here. Complainant next argues that the regulations
only allow for dismissal of complaints alleging dissatisfaction with
a previously-filed complaint, and that in the instant case he is not
alleging dissatisfaction with a previously-filed complaint but with
the underlying complaint. In addition, Complainant argues, the Agency
failed to comply with MD-110 because the Agency did not address the
merits of his allegations of dissatisfaction with complaint-processing.
Finally, Complainant argues that Agency officials encouraged him to
file a new complaint to voice his dissatisfaction with the ADR process,
and are therefore estopped from using that fact to justify dismissing
the complaint.
The Agency argues that Complainant is again raising the same claims that
were previously decided and the Agency requests that we affirm Decision
3.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to request
for a hearing in a case, the Agency shall dismiss a complaint that states
the same claim that is pending before or has been decided by the Agency or
Commission. We note that claims 1, 2, 3, and 4 state the same claims that
have been decided by the Agency and the Commission. Specifically claims
1 and 2 are the same claims as claim 6 from Decision 2 and Gonzales 2,
claim 3 is the same claim as claim 7 from Decision 2 and Gonzales 2,
and claim 4 is the same claim as claim 8 from Decision 2 and Gonzales 2.
While Complainant argues on appeal that the ADR process and the complaint
process are separate and that the regulations and MD 110 only require
dismissal of complaints that allege dissatisfaction with the complaint
process, and not of complaints alleging dissatisfaction with the ADR
process, we note that such arguments should have been made at the time of
Decision 2 and Gonzales 2 or when Complainant sought reconsideration of
Gonzales 2. The Commission, however, will not revisit Gonzales 2 here.
With regard to claims 5 and 6, we find that the claims fail to state
a claim under the EEOC regulations because complainant failed to show
that he was subjected to unwelcome verbal or physical conduct involving
his protected classes, that the harassment complained of was based
on his statutorily protected classes, and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). Nor has he shown he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Finally, we find that Complainant does not state a
claim of reprisal because we find that a management official providing
allegedly misleading statements at any point during an EEO complaint does
not constitute action that is reasonably likely to deter Complainant or
others from engaging in protected activity.
Accordingly, the Agency's final decision dismissing the complaint is
AFFIRMED.
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 (S0610)
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. 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
December 21, 2010
__________________
Date
2
01-2010-3107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103107