0120090849
04-02-2009
Kurt A. Daniels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kurt A. Daniels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090849
Agency No. 1F-968-0015-08
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated November 10, 2008, dismissing his 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
During the period at issue, complainant was employed as a Maintenance
Engineering Specialist, EAS-19, at the agency's Honolulu Processing and
Distribution Center in Honolulu, Hawaii.
On July 14, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On October 21, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race, sex, color, and age when:
(1) on July 10, 2008, he was informed that he would be working as a
supervisor on Tour 1;
(2) on July 10, 2008, his medical restrictions were discussed in the
presence of his co-workers;
(3) in approximately February or March 2006, he was not selected for
the position of Manager, Maintenance Operations; and
(4) on an ongoing basis (no specific dates given) an identified co-worker
is given preferential treatment with regard to sick leave usage,
attendance, work performance, training and affording "special favors to
her favorite people."
In its November 10, 2008 final decision, the agency dismissed claims
(1), (2) and (4) for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), finding that complainant was not aggrieved. Specifically,
in addressing these claims, the agency found that unless the conduct
is severe, a single incident or group of isolated incidents will not
be considered discriminatory harassment. The agency dismissed claim
(3) on the grounds of untimely EEO Counselor contact, pursuant to 29
C.F.R. � 1614.107(a)(2). The agency determined that complainant's
initial EEO Counselor contact occurred on July 14, 2008, which it found
to be beyond the 45-day limitation period.
Claims (1), (2) and (4)
The agency improperly dismissed claims (1), (2) and (4) for failure to
state a claim. The Commission has previously held that an agency should
not ignore the "pattern aspect" of a complainant's claims and define
the issues in a piecemeal manner where an analogous theme unites the
matters complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). By claiming a pattern of harassment,
complainant has stated a cognizable claim under the EEOC regulations.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Claim (3)
The agency improperly dismissed claim (3) on the grounds of untimely EEO
Counselor contact. Complainant initiated EEO Counselor contact on July
14, 2008. The Commission finds, however, that "[b]ecause the incidents
that make up a hostile work environment claim collectively constitute one
unlawful employment practice, the entire claim is actionable, as long,
as at least one incident that is part of the claim occurred within the
filing period. This includes incidents that occurred outside the filing
period that the [complainant] knew or should have known were actionable
at the time of their occurrence." EEOC Compliance Manual, Section 2,
Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National
Railroad Passenger Corp. v. Morgan 536 U.S. 101, 117 (2002)).
Because we have determined that complainant stated a claim of harassment
as reflected in our discussion of timely raised matters identified in
claims (1), (2), and (4), and discussed above, the Commission further
determines that the agency improperly dismissed this remaining claim
(claim (3)), on the grounds of untimely EEO Counselor contact.
Accordingly, we REVERSE the agency's final decision dismissing
complainant's formal complaint, defined herein as a harassment claim, and
we REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to process the remanded claim (harassment/hostile
work environment) in accordance with 29 C.F.R. � 1614.108 et seq.
The agency shall, to the extent practicable, consolidate this complaint
with complainant's other pending harassment complaint for continued
processing. 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 (15) 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 acknowledgement 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 (K0501)
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,
D.C. 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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
April 2, 2009
__________________
Date
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0120090849
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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