0120131783
06-26-2013
Samuel L. Colesioe, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Samuel L. Colesioe,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120131783
Agency No. 4J630001813
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 22, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Post Office in Florissant, Missouri.
On January 30, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American). The Agency, in its dismissal decision, framed the issue in the complaint as discrimination "when on October 12, 2012, management created a hostile work environment when a co-worker was reinstated."
The record shows that Complainant was part of a group of African American employees who filed similar discrimination complaints over the same Agency action. According to the related EEO counseling report, the co-worker's employment with the Agency had previously been terminated on the charge that she had racist materials negative towards African Americans in her work area (her mail sorting case), as well as offensive political posters.1 Another Complainant alleged that she had complained to management about these materials three times over a period of two years, but nothing was originally done about it. The record indicates that the co-worker was eventually found by management to have violated the Agency's "Zero Tolerance Policy" for racial discrimination and was terminated. However, in October 2012, she was reinstated pursuant to a grievance resolution. On the day the co-worker returned to work, she was accompanied by a Postal Inspector and a Postal Police Officer for protection. Complainant asserted that this intensified the hostile atmosphere.
The Agency dismissed the matter, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that Complainant did not allege that he was harmed by the reinstatement of the coworker and that Complainant's disagreement with the decision to return the co-worker to the workplace was an improper collateral attack on the grievance process.
The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant's allegations are sufficient to state a claim of a hostile work environment.
According to information in this and other complaints, the co-worker had kept racist materials in her case for a long time. Management did nothing, despite the complaints. When action was finally taken it was determined that the co-worker's actions were sufficient to warrant her removal. However, the Agency subsequently brought the co-worker back to work in the same workplace. Moreover, Complainant asserts that her return was conducted in a manner that only heightened the tension among the employees. We are not convinced by the Agency's argument that Complainant has not alleged that he was harmed by the return of the co-worker to the same workplace where it had earlier been determined she had engaged in an extended period of keeping offensive racial materials at her work station despite complaints about it. See, Juergensen v. Department of Commerce, EEOC Appeal No. 0120073331 (October 5, 2007), request to reconsider denied, EEOC Request No. 0520080128 (December 19, 2007) (EEOC reversed a dismissal for failure to state a claim where the agency rehired a former employee who management knew had engaged in racial harassment when previously employed in the same office).
To the extent the Agency also argues that the matter is an improper collateral attack on the collective bargaining process, we disagree under the facts as presented in this case. Regardless of what the grievance process may have concluded, we find that the Complainant has raised a viable claim of hostile work environment when the co-worker was returned to the work place. An Agency may not use a grievance settlement as an excuse to allow a racially hostile work place.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. In further processing, the Agency should consolidate this complaint with the related EEO complaints from other employees concerning the same matter.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 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
June 26, 2013
__________________
Date
1 Information taken from Brewer v. USPS, Appeal No. 0120131786, is contained herein.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131783
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131783