0120112844
10-20-2011
Julian I. Adams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Julian I. Adams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120112844
Agency No. 4B-110-0025-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 4, 2011, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency’s Station facility in East Elmhurst,
New York.
On March 15, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African-American), age (53), and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. on October 29, 2010, Complainant was issued a 14-Day Suspension for
Failure to Follow Instructions; and
2. from September 2010 to November 2010, Complainant was subjected to
discriminatory working conditions. In support of his claim, Complainant
indicated that the following events occurred:
a. a relay box was added to his route;
b. Complainant’s use of a push cart was limited; and
c. he was subjected to excessive supervision when he was observed on
his whole route three times during this time period.
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(1)
finding that Complainant alleged a claim of discrimination against the
grievance process which upheld the suspension action. The Agency then
dismissed claim (2) for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1). The Agency determined that Complainant failed to show
that he was harmed by the alleged events or that the alleged events, if
taken as a whole, state a claim of harassment. The Agency also noted
that Complainant failed to contact the EEO Counselor within 45 days
with respect to claim (2). As such, the Agency also dismissed claim
(2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor
contact. Therefore, the Agency dismissed the complaint.
Complainant appealed. As to claim (1), Complainant indicated that
he filed a grievance on the suspension which has not been resolved.
Complainant argued that he, in fact, alleged discrimination on the 14 Day
Suspension itself. Further, as to claim (2), Complainant asserted that
Management has made changes that has harmed the terms and conditions
of his employment. Complainant indicated that he has been permitted
to use a push cart to do his route for the last ten years and in 2010,
his supervisor (Supervisor) forbade him from using it. To the extent
the Agency alleged that Complainant was untimely in contacting the EEO
Counselor, Complainant indicated that the most recent events occurred
within the requisite 45 day time period and that the events alleged were
part of the Agency’s escalation of a pattern of harassment against
Complainant.
The Agency requested that the Commission affirm its dismissal.
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, .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
Request No. 05931049 (Apr. 21, 1994).
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
The proper forum for Complainant to have raised his challenges to actions
which occurred during the grievance proceeding was at that proceeding
itself. It is inappropriate to attempt to use the EEO process to
collaterally attack actions which occurred during the grievance process.
Upon review of the record, we find no evidence to show that Complainant
was challenging the grievance procedure. Complainant’s EEO Complaint
and all the documents in the record clearly show that Complainant has
alleged discrimination with respect to the suspension. As such, we find
that the Agency’s dismissal of claim (1) was not appropriate.
As to the Agency’s dismissal of claim (2), we note that the Agency
failed to recognize Complainant’s claim of harassment. In determining
whether a harassment complaint states a claim in cases where a complainant
had not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has repeatedly 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. Nat’l Aeronautics
and Space Admin., 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 repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., 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. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
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. Dep’t of the Army, EEOC Appeal No. 01933866 (November 22,
1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied 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.
In his claim, Complainant asserted that Management has taken actions
against the terms and conditions of Complainant’s employment creating
a hostile work environment. Complainant indicated that the suspension
raised in claim (1) was the culmination of the ongoing pattern of actions
by Management. Therefore, to analyze Complainant’s claim of harassment,
we must take into account both claims (1) and (2). Taking the events
as a whole, we find that Complainant has stated a claim of harassment.
As such, we find that the Agency’s dismissal of this claim was not
appropriate.
The Agency also dismissed claim (2) pursuant to 29 C.F.R. §
1614.107(a)(2) for untimely EEO Counselor contact. EEOC Regulation 29
C.F.R. §1614.107(a)(2) states 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, §1614.106 and §1614.204(c), unless
the agency extends the time limits in accordance with §1614.604(c).
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO 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.
EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish that
complainant was not aware of the time limit, that complainant did not
know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence complainant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
We note that the Supreme Court of the United States 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, 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. The Court defined such “discrete
discriminatory acts” to include acts such as termination, failure to
promote, denial of transfer, or refusal to hire, acts that constitute
separate actionable unlawful employment practices. Id. Finally, the
Court held that such untimely discrete acts may be used as background
evidence in support of a timely claim. Id.
The record indicates that on October 14, 2010, Complainant was told not
to use a push cart. We find that Complainant’s claim regarding the
push cart itself is untimely and not actionable. However, Complainant
provides this information as background evidence regarding the suspension
and his claim of a hostile work environment. Upon review, we find that
Complainant’s claim of harassment is not time barred in that some of
the events raised in support of Complainant’s claim occurred within
45 calendar days of his contact on December 3, 2010. Therefore, we find
that the Agency’s dismissal of Complainant’s claim of harassment is
not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on
appeal, including those not specifically addressed herein, we REVERSE
he Agency’s dismissal decision and REMAND the matter for further
processing in accordance with the Order below.
ORDER (E0610)
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 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 (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 (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”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 20, 2011
__________________
Date
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0120112844
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112844