0120151990
02-05-2016
Brendan D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brendan D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120151990
Agency No. 4K-300-0049-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 9, 2015, dismissing a 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster at the Agency's Jackson, Georgia Post Office.
On March 6, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, sex, color, age, and in reprisal for prior EEO activity when:
1. from June 24, 2014 through November 1, 2014, his request for leave was denied, and he was charged Leave Without Pay;
2. on unspecified dates, he was not provided with work hours;
3. he was required to use a PS Form 1261 to record his time;
4. while working at the Christmas Terminal Handling Operations, he was not paid correctly;
5. from November 1, 2014 through January 21, 2015, he was denied computer access;
6. on November 5, 2014, he was assigned to the Atlanta, Georgia NDC;
7. from November 15, 2014 through November 23, 2014, he was assigned to the 301th street facility;
8. on November 20 and 21, 2014, his wife was charged with 16 hours of being Absent Without Official Leave; and
9. on November 3, 2014, his supervisor did not provide him with an end-of-year, EOY, performance discussion and entered "employee being separated"
into the comment section of his evaluation.
The record reflects that Complainant had filed an appeal with the Merit Systems Protection Board (MSPB) concerning his removal from Agency employment. On October 27, 2014, the parties entered into an MSPB settlement agreement in which the Agency agreed to return Complainant to full employment at the same pay and grade prior to his removal. The record further reflects that Complainant returned to work in November 2014.
In its April 9, 2015 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In regard to claims 1 - 7, the Agency found that the matter raised therein was a collateral attack on the Merit Systems Protection Board (MSPB) process. The Agency stated that Complainant should have raised his allegations through the MSPB process, not through the EEO process.
The Agency further found that in regard to claims 8 - 9, Complainant was not aggrieved. Specifically, the Agency determined that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. The Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
Complainant, on appeal, states "contrary to the United States Postal Service EEO/Investigative Services Department conclusion. I did not at one time ever state or imply that the Postal Manager's involved in my case violated or breach the MSPB agreement. What I've pointed out is that from day one of my return to work on November 1, 2014 [Human Relations Manager's], [Former Manager Post Office Operations (MPOO)] & [Former MPOO] engage and conspire to create a hostile work place."
The instant appeal followed.
ANALYSIS AND FINDINGS
As a threshold matter, we find that the claims raised in Complainant's instant formal complaint are new and separate claims from the claims raised in his MSPB appeal. We further find that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the instant formal complaint for failure to state a claim. Specifically, the Agency determined that claims 1 - 7 were a collateral attack on the MSPB process, and that in regard to claims 8 - 9, Complainant was not aggrieved. A fair reading of his formal complaint, Complainant claimed that he was subjected to a series of related incidents of harassment from June 2014 through present.
In the attachment to the instant formal complaint, Complainant states that he was subjected to ongoing harassment since he returned to work in November 2014 and "it has been one thing after another. My Postmaster representative told me before returning that the managers would try to aggravate me in attempt to be able to and fire me or have my resign." We also note that Complainant, on appeal, states that the Human Resources Manager and two former MPOOs "have sought to isolate and alienate me from my peers, and other postal employee's. They have continually tried to inflict emotional, physical, and financial hardships to my family and I."
As a remedy, Complainant requested that to return to his office at the Agency's Jackson, Georgia facility "with continuance of service vacating retirement status," that his annual and sick leave be reimbursed since November 2013, maximum salary for Level 20 Postmaster, payment for all costs related to his EEO case, an apology from the Human Resources Manager and two former MPOOs and compensatory damages. These matters, taken together, state an actionable claim of harassment. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, we REVERSE the Agency's dismissal of the formal complaint for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.2
ORDER (E0610)
The Agency is ordered to process the remanded claims (harassment/hostile work environment) 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 (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
February 5, 2016
__________________
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 We note, however, that to the extent that Complainant intends the harassment claim to actions taken against third parties, as identified in claim 8, such matters would not be construed as part of his own harassment claim.
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