EEOC Appeal No. 0120180361
01-31-2018
Paris M. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Anthony Stallings, a/k/a
Paris M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180361
Agency No. 1F-921-0044-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 2, 2017, 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
During the period at issue, Complainant worked as a Distribution Clerk at the Agency's Margaret L. Sellers P&DC facility in San Diego, California.
On June 13, 2017, Complainant contacted an EEO Counselor. When the matter was not resolved, Complainant filed a formal complaint on September 7, 2017, alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability (disabled veteran), and in reprisal for prior protected EEO activity.
In its October 2, 2017 final decision, the Agency determined the complaint was comprised of the following claims:
1. Since November 1, 2016, management has not granted [Complainant] reasonable accommodation.
2. Complainant has been consistently harassed by management, degraded by management and embarrassed in front of coworkers.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that the latest alleged discriminatory incident occurred on November 1, 2016, but that Complainant did not initiate EEO contact until June 13, 2017, outside of the applicable time limit. In addition, the Agency dismissed Complainant's complaint on the alternate grounds of failure to state a claim, reasoning that Complainant did not establish that he was aggrieved with respect to a term, condition, or privilege of employment. The Agency noted that Complainant did not specify which of the Agency's actions were allegedly discriminatory and, therefore, his complaint constituted a generalized grievance.
The instant appeal followed. On appeal, Complainant reasserts that he has been subjected to ongoing harassment by his supervisors since November 1, 2016, and that he has yet to receive the reasonable accommodation ordered by his doctor.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.
ANALYSIS AND FINDINGS
Dismissal for Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. As an initial matter, we find that Complainant is alleging an ongoing hostile work environment claim including, but not limited to, being denied a reasonable accommodation on an ongoing basis, being denied overtime, and being called derogatory names such as "fat."
As such, Complainant has alleged an ongoing hostile work environment that continued up through the date he sought EEO counseling. The Commission has held 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 of 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 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
Complainant's hostile work environment claim consists, in part, of an ongoing denial of a reasonable accommodation. As such, this matter must be characterized as a recurring violation. Specifically, the EEOC Compliance Manual, Section 2, "Threshold Issues", p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that "because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it." In the instant matter, Complainant is alleging that the Agency initially approved his request for a reasonable accommodation, but failed to "follow through" and provide it to him. Thus, Complainant is alleging that he has been denied a reasonable accommodation on an ongoing basis through the date he sought EEO counseling.2 Because the denial of his reasonable accommodation occurred within the 45 days preceding his EEO contact on June 13, 2017, his overall hostile work environment claim (which includes the denial of a reasonable accommodation claim) is timely.
Dismissal for Failure to State a Claim
The Agency improperly dismissed Complainant's complaint for failure to state a claim. As set forth above, Complainant is alleging an ongoing hostile work environment claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable.
In the instant matter, Complainant is alleging that he was subjected to an ongoing hostile work environment when, among other things, he was repeatedly denied a reasonable accommodation, denied overtime, and called derogatory terms based on his protected classes. Upon reviewing these alleged incidents collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency for further processing in accordance with the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims (defined herein as hostile work environment/failure to accommodate claims) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In his formal complaint, Complainant sets forth that the alleged discrimination occurred from November 1, 2016 to present.
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