0120180178
01-04-2018
Adriene B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adriene B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120180178
Agency No. 4B020003617
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 21, 2017, dismissing her 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
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Waltham Carrier Annex facility in Waltham, Massachusetts.
On May 22, 2017, Complainant contacted an EEO counselor. On August 23, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of sex (female), disability (hearing impaired and on the job injury to ankle), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Beginning December 28, 2016, and ongoing, Complainant had not received payment for her arbitration award;
2. On January 13, 2017, Complainant became aware that her case was moved across from the manager's door, in view of the supervisor, beneath the video cameras, and close to the female co-worker who had an affair with Complainant's husband;
3. On January 13, 2017, Complainant was required to provide updated medical documentation;
4. On January 18, 2017, Complainant's start time was changed;
5. Beginning January 20, 2017 through February 8, 2017, Complainant's assignment was changed, and she was placed on standby time;
6. On January 30, 2017, Complainant was required to provide documentation of her medical appointment scheduled for February 6, 2017;
7. On February 7, 2017, Complainant was required to work outside of her medical restrictions and sent home for locking her keys in her vehicle;
8. On February 10, 2017, Complainant was placed on Emergency Placement;
9. On February 13, 2017, Complainant received a letter directing her to attend an investigative interview on February 15, 2017; and on February 15, 2017, Complainant received another letter which stated Complainant was a no-show for the Investigative Interview. Subsequently, Complainant was given an Investigative Interview on February 17, 2017, but did not receive payment for the time spent at the investigative Interview; and
10. On March 22, 2017, Complainant was issued a "Notice of Removal for Failure to Perform [her] Duties in a Satisfactory Manner / Unsafe Act."
The pertinent record shows that the Agency terminated Complainant's employment twice. The first termination was overturned and Complainant was reinstated per an Arbitrator's decision, dated December 28, 2016. The record also shows that Complainant had two prior EEO complaints: 4B020004516 and 4B0200121. The Agency claims that the latter complaint was never formally submitted.
In addition, the Agency maintains that the Letter of Removal was issued on March 22, 2017. The record shows the Agency issued Complainant a Form 50, Notice of Removal on May 12, 2017 and the action was effective on April 28, 2017. Complainant made her EEO contact on May 22, 2017.
Agency Decision
The Agency issued a final decision dismissing the complaint for failure to state a claim and for untimely EEO contact. The Agency found that her request for pre-complaint counseling was made more than 45 days after the issue alleged to be discriminatory in claim one. The Agency reasoned that the issues raised in in claims two through ten, are "merely a reiteration and extension of [her] previous complaint" and was previously addressed.
On appeal, Complainant states that the Agency erred in finding that the claims are identical to issues raised in Complaint 4B020004516. She states that the issues raised in the complaints before us are separate and distinct, because she is alleging issues that arose on or after December 28, 2016, regarding the Agency's second termination of Complainant. In addition, she raises subsequent claims regarding "discriminatory issues which arose in January, February and March of 2017." She states that her retaliation and hostile work environment claims were not previously addressed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. An employee is required to contact an EEO Counselor within 45 days of the date of the alleged discriminatory act.
We construe Complainant as alleging claims of discrimination that were part of an ongoing pattern of retaliatory harassment that started on December 28, 2016, (the date of the Arbitrator's decision), and continued until the effective date of her removal, which was April 28, 2017. Complainant made EEO contact on May 22, 2017. The Agency states that it issued the letter of removal on March 22, 2017, but the record shows that the Form 50, Notice of Removal, was issued on May 12, 2017. Regardless, the effective date of the removal was April 28, 2017, and her EEO counselor contact was timely.
When it comes to timeliness, the burden is on the Agency to show that the EEO contact was untimely. We find that the Agency did not show that her EEO contact was untimely. Further, she is alleging an ongoing hostile work environment and claims which we find are like and related and one of which was timely presented to the EEO counselor. 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) and Giselle W. v. Dep't. of the Air Force, EEOC Appeal No. 0120150467 (April 7, 2016).
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
Failure to State a Claim
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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging a hostile work environment and discrimination when she allegedly was subjected to a series of allegedly related incidents of disparate treatment based on her sex (female), disability (hearing impairment and ankle injury) and retaliation for her prior EEO activity. She has stated a viable claim. In this case, Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
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 (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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 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. 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 4, 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.
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