0120061271
01-18-2007
William C. Stiehl, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William C. Stiehl,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200612711
Agency No. 1H-336-0117-02
Hearing No. 150-2004-00433X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated November 23, 2005, relating to the dismissal of 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.
During the relevant time, complainant was employed as a Data Collection
Technician at the agency's Tampa Processing and Distribution Center in
Tampa, Florida.
On May 2, 2002, complainant initiated contact with an agency EEO office,
claiming that he was subjected to discriminatory harassment on the
bases of race, sex, and in reprisal for prior protected EEO activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
On June 21, 2002, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the bases of race, sex and in reprisal for prior EEO
activity.
In its final decision dated August 1, 2002, the agency determined that
complainant's complaint was comprised of two claims, identified as
follows:
(1) on May 7, 2002, two e-mail messages with heavy racial tones were
left on [complainant's] desk; and
(2) since filing the subject complaint, complainant's "medical privacy"
was violated when his supervisor placed a sign on the time clock stating
that [complainant] needed a medical release in order to return to duty.
In his formal complaint, complainant asserted that this action was
undertaken to allow complainant's co-workers to know that complainant
is suffering from a stress-related condition requiring medical clearance.
The agency dismissed the formal complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Regarding claim (1), the
agency found that complainant did not suffer a personal loss or harm
regarding a term, condition or privilege of his employment as a result of
receiving e-mails with racial comments. The agency dismissed claim (2)
finding that Privacy Act violations are not a basis covered by Federal
EEO law.
On appeal, the Commission found that the agency improperly characterized
the formal complaint as being comprised solely of the two matters
identified above, and that the agency improperly dismissed the complaint
for failure to state a claim. The Commission further determined that a
fair reading of complainant's complaint reflected that complainant claimed
that he was the victim of harassment. On remand, the agency was ordered
to process the remanded claims in accordance with 29 C.F.R. � 1614.108.
Stiehl v. United States Postal Service, EEOC Appeal NO. 01A24815
(September 17, 2003).
At the conclusion of the investigation of the remanded claims,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). On May 20, 2005,
the AJ issued a partial dismissal.
In her partial dismissal, the AJ stated that complainant raised the
following incidents as part of his harassment claim:
(1) after October 1998 until May 2002, complainant was not allowed to
serve as Acting Manager, while other employees were provided with the
opportunity;
(2) from November 1999 until January 2000, he was ordered to take Leave
Without Pay, with the threat of being terminated;
(3) in January 2000, he was denied Family Medical Leave when his wife
was in a critical medical condition;
(4) in April 2001, he was denied a change of schedule for medical
treatment;
(5) on May 7, 2002, he received two e-mail messages with heavy racial
tones that were left on his desk;
(6) in May and June 2002, he was falsely accused of manipulation of
postal e-mail for the purposes of filing a fraudulent OWCP claim;
(7) his "medical privacy" was violated when in June 2002, his supervisor
placed a sign on the time clock stating that complainant needed a medical
release in order for him to return to duty;
(8) in November 2002, complainant's paperwork regarding his OWCP
application was left open near an office mailbox; and
(9) in September 2002, other employees were informed that he would no
longer be performing his previous preferred duties, such as scheduling. 2
The AJ dismissed claims (2), (3) and (4) pursuant to 29 C.F.R. �
1614.107(a)(2) on the grounds of untimely EEO Counselor contact.
The AJ determined that she would address claims (1) and claims (5) -
(9) in an upcoming hearing.
On June 2, 2005, however, the agency filed a Motion to Dismiss or in
the alternative, an Agency's Motion to Dismiss for Lack of Standing
and Request for Referral to the United States Attorney's Office and for
Judicial Estoppel.
In its motion, the agency requested that the AJ dismiss complainant's
formal complaint without a hearing, finding no discrimination.
The agency argued that complainant lacked standing to pursue harassment
claims due to his failure to provide documents concerning his bankruptcy
proceedings. Specifically, the agency argued that on May 6, 2002,
complainant had filed a voluntary petition under Chapter 7 of the
Bankruptcy Code with the United States Bankruptcy Court for the Middle
District of Florida (Docket No. 8:02-bk-08841). The agency argued that
on August 28, 2002, complainant's debts were discharged in bankruptcy
and his case was closed. The agency argued that in its Request for
Production of Documents to complainant (identified as request No. 14),
the agency requested copies of bankruptcy pleadings of any bankruptcy
case filed after January 2002. The agency acknowledged that complainant
responded to its discovery requests, but that complainant disclosed
no bankruptcy pleadings or filings. The agency argued that because
complainant's bankruptcy case had been dismissed and the Trustee had
been relieved of his duties, complainant has no standing to pursue his
pre-bankruptcy claims in the instant case.
Further, the agency argued that complainant clearly did not disclose
the existence of his claim for monetary damages in his Statement of
Financial Affairs. The agency argued that complainant attempted to
avoid disclosing the material omissions in the bankruptcy filing to the
agency so he could continue to actively pursue the claim even after he
was asked by the agency to provide documents from any bankruptcy filing
he made after January 2002. The agency argued that the AJ should apply
the doctrine of judicial estoppel in dismissing complainant's case based
on the fact that complainant deliberately and intentionally tried to
conceal and mislead not only the Bankruptcy Court but the agency and
the AJ as well.
On September 30, 2005, the AJ dismissed complainant's case for lack of
standing and lack of jurisdiction.
The agency implemented the AJ's dismissal in a final action dated November
23, 2005. It is this decision that is the subject of the instant appeal.
Upon review of the record, the Commission determines that the AJ
improperly dismissed claims (2) - (4) on the grounds of untimely EEO
Counselor contact in her May 20, 2005 partial dismissal; and improperly
dismissed complainant's complaint for lack of standing and lack of
jurisdiction in her September 30, 2005 dismissal.
Regarding the AJ's dismissal of claims (2) - (4) on the grounds of
untimely EEO Counselor contact, we find that complainant's complaint
constitutes a claim of harassment. The Supreme Court of the United States
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). 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 timely discrete acts may be used as
background evidence in support of a timely claim. Id.
Claims (2) - (4) do not represent "discrete acts," but rather, serve
as examples of complainant's overall claim of hostile work environment
harassment. These issues cannot be dismissed on the grounds of untimely
EEO Counselor contact, because they are part of a harassment claim,
which include some alleged incidents that occurred within forty-five
days of the date of complainant's initial EEIO Counselor contact.
Moreover, regarding the dismissal of the remaining claims, the Commission
determines that the AJ improperly dismissed these matters for lack of
standing and lack of jurisdiction. We find that a review of the record
reflects that there is no direct nexus between complainant's bankruptcy
proceedings and the matters raised in the instance case. Therefore,
we find that the agency's final action implementing the AJ's dismissal
of the complaint was inappropriate.
Accordingly, the AJ's decision to dismiss claims (2) - (4) pursuant to
29 C.F.R. � 1614.107(a)(2) on the grounds of untimely EEO Counselor
is REVERSED. Further, the AJ's dismissal of the remaining claims in the
instant complaint, based on lack of standing and lack of jurisdiction
is REVERSED. The complaint is REMANDED for further processing in
accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Miami District Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy
of the complaint file to the Hearings Unit of the Miami District Office
within fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit of the Miami District Office. Thereafter, the
Administrative Judge in the Miami District Office shall issue a decision
on the compliant in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 19848, Washington,
D.C. 20036. 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. 200e-16(c)(Supp. V 1993). 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 18, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 For purposes of clarity, the Commission has re-numbered complainant's
claims as claims (1) - (9).
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01A61271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120061271
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