0120122294
03-20-2013
Mike Cheung, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Mike Cheung,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120122294
Hearing No. 520-2012-00069X
Agency No. 4B-110-0087-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 25, 2012, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed as moot.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Ft. Hamilton Station facility in Brooklyn, New York.
Complainant contacted an EEO counselor on March 30, 2011. In a nine-page complaint dated June 17, 2011,1 Complainant alleged that his supervisor treated foreign-born Asians and Caucasians better than he was treated. Specifically, he alleged the Agency subjected him to discrimination on the bases of race (Asian), national origin (American-Born Chinese), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when:
1. On December 29, 2010, management claimed that Complainant failed to follow instructions and, on January 6, 2011, management issued Complainant a Letter of Warning (LOW) for Failure to Follow Instructions.
2. On February 25, 2011, Complainant was subjected to a pre-disciplinary interview and, on March 4, 2011, his supervisor issued Complainant a seven-day suspension for failure to follow instructions.
Complainant seeks reimbursement for lost work hours and overtime and asks that the unwarranted disciplinary actions and harassment to cease.
The Agency only accepted and investigated the claims of race (Asian American) and retaliation with regard to the March 4, 2011 suspension (claim 4). The Agency dismissed claim 1 as untimely raised.
The record gathered during the investigation shows Complainant reported to the Supervisor Customer Services, EAS-17 (S1) at the Fort Hamilton Station in Brooklyn, New York. S1 perceived Complainant's race to be Asian and he averred that he was aware of his national origin. Complainant worked for the Agency for about 17 years at the time of events at issue.
The record shows that Complainant identifies himself as a Chinese American (American-born). He speaks fluent English. He states that he is outspoken and is not afraid to challenge management, whereas he believes that the Asian foreign-born carriers are more reticent to speak up for themselves.
Complainant averred that on August 25, 2010, he submitted a written complaint of discrimination challenging management's harassment and naming S1 as the perpetrator. Within months of participating in the EEO activity, he asserts that S1 began to target Complainant by imposing a harsher schedule, more stringent time constraints and more reporting requirements than the supervisor imposed on the other carriers.
S1 acknowledged that he issued Complainant a Letter of Warning on January 6, 2011, for unauthorized use of overtime and failure to follow instructions and that no other carriers were issued discipline for the same infraction. The record shows that the December 2010 incident occurred following a huge blizzard with record-breaking snow. Complainant alleged the carriers were instructed to "work safely on the street and do the best you can." He claims other carriers also came back late and worked overtime, but were not disciplined. S1 acknowledged that three comparators returned to the office late. The supervisor said that there was "no reason to issue any corrective action that day" because the available employees were making every effort to deliver the mail.
S1 stated that the suspension involved an incident on February 24, 2011. He asserts Complainant failed to submit a Form 3996 to request assistance or addition overtime, he failed to notify management and he returned to the office after 6 p.m. Complainant stated that on that date, carriers left late to begin their routes because the parcels were sorted late. As a result, he states that the supervisors made a general announcement that the carriers were authorized one hour of overtime. Complainant asserts he was never told that he was required to submit a Form 3996. S1 points to Caucasians who were later issued discipline, but the discipline was in the form of a Letter of Warning and was issued after S1 issued a suspension to Complainant.
Complainant also alleged that prior to the suspension, his supervisor engaged in a pattern of treating him more harshly than other carriers with regard to delivery times. He asserted that on January 27, 2011, during another snowstorm, his supervisor required him to carry more mail than others and return by 7:00 p.m., while allowed other carriers who were Caucasian or foreign-born were allowed to return after 7:00 p.m. He also alleged that on February 22, 2011, his supervisor mandated he return by 5:00 p.m., while allowing other carriers to return later. S1 admitted that two of the comparators named by Complainant returned to the office late on February 22, but S1 states that "they were authorized to do so". S1 did not so authorize Complainant and admitted that he "expected Complainant to return to the office by 5 PM" based on the work load he was assigned by the supervisor. Complainant asserted that, in fact, he had been given additional duties. S1 averred, "[e]veryone was not necessarily expected to return to the office by 5 PM. I expected Complainant to return to the office by 5 PM based on the work load he was assigned." Affidavit D, page 5.
Following the investigation, Complainant requested a hearing before an Administrative Judge. The EEOC Administrative Judge (AJ) assigned to the case dismissed the complaint as moot. The AJ reasoned that a grievance settlement agreement pertinent to the suspension rendered all of the underlying issues moot. The AJ did not address the Agency's partial dismissal of claim 1.
Thereafter, on April 25, 2012, the Agency issued a final decision implementing the dismissal of the complaint, as moot.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency adopted the AJ's dismissal of this complaint, pursuant to 29 C.F.R. � 1614.107(a)(5), as moot. The AJ reasoned that the seven-day suspension had been reduced to a six-month conditional letter of warning and, therefore, rendered moot.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in Complainant's complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
As an initial matter, a fair reading of the complaint indicates that Complainant was not solely raising a claim of disparate treatment regarding the suspension. Rather, he was asserting a claim of ongoing harassment based on his national origin and retaliatory animus when S1 allegedly began to target Complainant by imposing a harsher schedule, more stringent time constraints and more reporting requirements than the supervisor imposed on the other carriers. Complainant is alleging that he was discriminated against because of his national origin because he did not fit the mold, based on management's perception that he was being too vocal and aggressive, unlike the foreign-born Asians or Caucasian employees. He asserts, on appeal, that the Agency has made him a symbol of reprisal, as a warning to other employees not to speak up for their rights. We note that, in issuing its partial acceptance of the initial claims, the Agency improperly fragmented Complainant's claim of ongoing discrimination and did not recognize his national origin claim. Neither the AJ nor Agency addressed this claim of ongoing harassment.
A fair reading of Complainant's claims and the investigative record suggests that there is a real possibility that the alleged harassment could continue. Therefore, the first prong (no reasonable expectation of a violation recurring) is not met. Further, the relief provided as part of the grievance settlement of the March 4, 2011 suspension did not eradicate the alleged effects of a discriminatory/retaliatory hostile work environment. Should Complainant prevail in his claims, the possibility of an award of compensatory damages exists, and Complainant's claim is not moot. See Glover v. USPS, EEOC Appeal No. 01930696 (December 9, 1993). For these reasons, we find the dismissal was not proper.
While the Agency dismissed the allegation concerning the January 2011 letter of warning as untimely raised, 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 National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). In this case, the related suspension was timely raised, so the letter of warning, which is part of Complainant's claim of ongoing harassment, is also timely. Because he has alleged an ongoing pattern of harassment and an injury or harm for which there is a remedy, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Also see Carmona v. USPS (Western Area), EEOC Appeal No. 0120114228 (February 10, 2012).
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. Section 1614.108 et seq.2 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 tends 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
March 20, 2013
_____________________________
Date
1 The date of the complaint is referenced as June 20, 2011 in the Agency's Partial Acceptance / Partial Dismissal letter.
2 Because the Agency's investigation focused solely on the suspension and not on Complainant's claim of ongoing harassment, we are remanding the entire complaint back to conduct a supplemental investigation. After the supplemental investigation is completed, Complainant should be issued a new notice of right to request a hearing.
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0120122294
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122294