0120111363
06-06-2011
Brian T. Palonis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Brian T. Palonis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120111363
Agency No. 1C-154-0011-10
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated November 19, 2010, dismissing his complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler at the Agency’s Pittsburgh Logistics and Distribution
Center facility in Warrendale, PA. He filed a formal complaint alleging
discrimination based on reprisal for prior protected EEO activity under
the Rehabilitation Act when:
1. the Family and Medical Leave Act (FMLA) Coordinator copied two letters
she sent him dated March 31, 2010 and April 7, 2010, to his Manager of
Distribution Operations (MDO) that were about arrangements for a second
medical opinion in violation of the Privacy Act;
2. on August 10, 2010, Supervisor 1 told him he could not go to the
bathroom, but later allowed him to go;
3. on August 11, 2010, after telling Supervisor 1 he had a medical
condition which required him to go to the bathroom more often, Supervisor
1 laughed and said he really didn’t care about his medical condition;
4. on August 11, 2010, (a) he was given a Pre-Disciplinary Interview
for delaying the mail, and (b) he was assigned to the sacks twice in
one night;
5. on August 12, 2010, he was assigned to the Automated Package Parcel
Sorter (APPS) machine and was denied another assignment;
6. after calling for an ambulance from work on August 12, 2010, and being
taken to the hospital, the Agency refused to pay for the ambulance and
hospital treatment;
7. on August 13, 2010, he was given the choice of working on the APPS
machine or going home;
8. on August 20, 2010, he was asked to identify two Mail Handlers he
referenced on a Report of Hazard, Unsafe Conditions PS Form 1767, and
when he declined the meeting was turned into a Pre-Disciplinary Interview
and he was repeatedly threatened with discipline;
9. on September 13, 2010, Supervisor 1 first disapproved his request to
switch assignments with a co-worker on the semi-auto side of the APPS
machine, but granted the request when the co-worker asked; and
10. on October 20, 2010, Supervisor 2 told him he would get written up
if he left his work assignment.1
On claim 1, the second letter made specific reference to Complainant
having pulmonary medical records.
On claim 2, Complainant contended that at one point Supervisor 1 said in
a threatening tone “if you go to the bathroom don’t bother coming
back,” followed him partly or all the way to the bathroom, and told
him to hurry up.
On claim 4(b), Complainant contended that he was assigned sacks duty
twice despite his suggesting and explaining to the MDO that he was having
some difficulty because of his “FMLA” “health condition.” This
referred to an alleged medical impairment which Complainant strongly
suggests is asthma. He also contended that after working with the sacks
a second time, his back hurt and he filed an injury report.
On claim 5, Complainant contended that he told Supervisor 3 that the APPS
machine semi-auto position has a lot of dust and dirt which aggravates his
FMLA condition, and later advised he was having a flare up. Complainant
contended that he also told Supervisor 1 that this work was directly
affecting his FMLA condition, and he denied him another assignment.
On claim 6, the record contains medical documentation showing after he
arrived at the hospital via ambulance, he complained of an asthma attack
and feeling threatened because no one would tell him who assigned him.
He wrote in his complaint in connection with this claim that the Agency
would not process an Office of Workers’ Compensation (OWCP) claim on
his behalf.
On claim 7, Complainant contended that Supervisor 1 told him he had a
choice of accepting the semi-auto position assignment or going home,
despite knowing from the prior night that this position caused a major
flare up of his FMLA medical condition.
On claim 8, Complainant wrote that he submitted a Report of Hazard,
Unsafe Conditions PS Form 1767, referring to two Mail Handlers. He wrote
that after he declined more than once to identify the two Mail Handlers,
Supervisor 4 advised this was now an investigation and if he did not
cooperate he would face discipline, and kept repeating this threat.
Complainant wrote that after saying it was management’s job to look
at staffing to identify who were the Mail Handlers, Supervisor 4 paused
momentarily and said “thank you, that is all I needed.” A shop
steward, who attended the meeting made a statement that after Complainant
declined to identify the Mail Handlers, Supervisor 4 advised this was now
a pre-disciplinary interview. Complainant referred to the steward’s
statement in his complaint.
On claim 9, Complainant indicated that he asked to switch because of
his medical condition, which he has strongly suggested was asthma.
On claim 10, Complainant contended that he told Supervisor 2, after he
assigned him to the semi-auto position, that if he had to go to the
bathroom or his locker to get medicine, he would do so. Complainant
contended that Supervisor 2 responded by saying he would write him up
for abandoning his position if he left his assignment, and Complainant
reminded him that he knew about his medical conditions. Complainant
contended that Supervisor 2 was aware he had a medical condition which
required him to go to the bathroom more often than others, and in
his complaint strongly suggested the medicine in his locker was for
his asthma.
The Agency dismissed claims 1 and 6 by omission, i.e., failing to
define or address them. It dismissed the remainder of the complaint
for failure to state a claim. 29 C.F.R. §
1614.107(a)(1). It reasoned that Complainant was not aggrieved and the
complaint did not rise to the level of actionable harassment.
CONTENTIONS ON APPEAL
Complainant writes that the Agency did not address his allegation about
the FMLA coordinator violating the Privacy Act, and that the Agency
told him it would not pay for his ambulance trip and hospitalization.
He argues that his complaint states a claim, and requests that should
he prevail on appeal, the Agency pay a third party to conduct the
investigation. In opposition to the appeal, the Agency asks that the
FAD be affirmed.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the
date of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. §�
�1614.105(a)(1) & .107(a)(2). The Agency dismissed claim 1 by omission.
We find Complainant is aware of the time limit to initiate EEO counseling
because he has previously filed an EEO complaint. Specifically, he
advised the EEO counselor that he believed he was subject to reprisal
for bringing the prior complaint.2 The alleged violations of privacy
occurred in March and April 2010. Complainant’s initial contact with
an EEO counselor on August 19, 2010 failed to meet the 45 calendar day
time limit. Accordingly, claim 1 is dismissed.
The Agency also dismissed claim 6 by omission. The Commission has
held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993). OWCP has exclusive authority to administer, interpret, and
enforce the Federal Employee’s Compensation Act (FECA), which authorizes
workers’ compensation benefits. For this reason, claim 6, which regards
not being granted workers’ compensation benefits, is within the purview
of OWCP, not the EEOC. Battle v. Department of Transportation (Federal
Aviation Administration), EEOC Appeal No. 0120101604 (Aug. 17, 2010).
Claim 6 is dismissed.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive” and the complainant subjectively perceives it
as such. Harris, at 21-22. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
The Agency dismissed the remainder of the complaint for failure to state
a claim. In much of the complaint, Complainant alleged that the Agency
failed to accommodate his medical impairments in reprisal for prior EEO
activity. This is his contention in claims 2, 4(b), 5, 7, 9, and 10.
Failing to accommodate a medical impairment constitutes a harm and states
a claim, and would also reasonably likely deter EEO activity. We find
that claim 3 is intertwined with claim 2, and hence states a claim.
In claims 4(a) and 8, Complainant contended that he was subjected to
pre-disciplinary interviews under threat of discipline. The Commission
has previously held that pre-disciplinary interviews would reasonably
likely deter EEO activity. Jones v. United States Postal Service
(Southwest Area), EEOC Appeal No. 0120093291 (January 15, 2010).
Further, on claim 4(a), Complainant contended that he had difficulty
because of his medical impairment, so this claim also involves the denial
of accommodation for an impairment, which states a claim.
We decline to order the Agency to pay a third party to conduct the
investigation. Under 29 C.F.R. Part 1614, the Agency is entitled to
conduct its own investigation in this case.
Accordingly, claims 1 and 6, as listed in this decision, are DISMISSED.
The Agency’s decision to dismiss the remaining claims, as listed in
this decision, is REVERSED. The Agency shall comply with the order below.
ORDER
The Agency is ordered to process claims 2, 3, 4, 5, 7, 8, 9, and 10 as
listed and characterized in this decision in accordance with 29 C.F.R. §
1614.108.3 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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 (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 6, 2011
__________________
Date
1 Based on a review of the complaint, we included claims 1 and 6 which
were in the complaint but the Agency did not define. The wording of
some of the claims was modified to more closely match what Complainant
alleged in his complaint.
2 In April 2010, the Agency issued a final decision finding no
discrimination on the prior complaint. Complainant appealed, and the
Commission vacated the final decision and ordered the Agency to provide
Complainant with a copy of the investigative file and notice of right
to a hearing. Palonis v. United States Postal Service (Eastern Area),
EEOC Appeal No. 0120102254 (September 16, 2010).
3 Prior to conducting the investigation, the Agency shall ask Complainant
to clarify if he is raising discrimination based on disability, and if
so, to identify the medical conditions he is claiming are a disability.
If Complainant writes that he is raising disability as a basis of
discrimination, the Agency shall add that basis to the investigation.
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0120111363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111363