0120161010
04-26-2016
Cherie F.,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
Cherie F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120161010
Agency No. 4K-280-0128-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 10, 2015, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Post Office facility in Lafayette, North Carolina.
On November 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of disability, age (50), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967
Section 501 of the Rehabilitation Act of 1973. In support of her claim of harassment, Complainant indicated that on July 9, 2015, the Supervisor came up to her and told her "That's why you are fucking a married man." Due to her hearing issues, Complainant leaned into the Supervisor to hear what was said. Complainant claimed that the Supervisor became more aggressive and grabbed her arm. The two of them had to be physically separated. Complainant indicated that she was put on emergency off-duty status. Later, the Supervisor was permitted to return to work on July 29, 2015. Complainant has not returned to work.
The Agency noted that the complaint was filed and identified Complainant's "claims" as the following events:
1. On July 9, 2015, through October 17, 2015, Complainant was placed on emergency placement in an off-duty status, and
2. On October 17, 2015, Complainant was concerned with the comments made by the Manager during a service talk and in the Manager's office regarding the USPS Zero Tolerance policy.
The Agency dismissed the complaint in its final decision. The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4) finding that Complainant had filed an appeal with the Merit Systems Protection Board (MSPB). The Agency noted that Complainant was issued with a removal action and she filed an appeal regarding the removal action with the MSPB on September 30, 2015. In contrast, her formal complaint was filed on November 13, 2015, regarding the emergency placement in an off-duty status that started on July 9, 2015. Consequently, the Agency determined that the appeal to the MSPB was an irrevocable choice of forum regarding the adverse action you received, and it dismissed claim (1) in accordance with 29 C.F.R. � 1614.107(a)(4). As for claim (2), the Agency found that the matter should be dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that Complainant failed to show she was harmed by the alleged "service talk" made by management. As such, the Agency dismissed the complaint as a whole.
This appeal followed. Complainant argued that the matter raised on appeal with the MSPB was the removal action which is not the same as the matter raised in the instant formal complaint. As such, Complainant requested that the Commission reverse the Agency's final decision dismissing the complaint. The Agency noted that Complainant filed a grievance which reduced the removal action to a suspension and that Complainant withdrew her MSPB appeal. The Agency indicated that the MSPB Administrative Judge dismissed with prejudice Complainant's appeal regarding the removal action. However, regardless of Complainant's withdrawal, the Agency noted that Complainant initially filed an MSPB appeal and subsequently filed an EEO complaint. As such, the Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
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. As an initial matter, we find that the Agency improperly defined the claim alleged in the instant EEO complaint. In her complaint, Complainant alleged that the Supervisor became aggressive with her and the Agency returned the Supervisor to the workplace while she was given a longer suspension. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant's claims are viewed in the context of Complainant's complaint of harassment, they state a claim and the Agency's dismissal of the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) was improper.
The Agency also held that, in the complaint, Complainant alleged events which were also raised in her mixed case appeal before the MSPB and dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4). An aggrieved person may initially file a mixed-case complaint with an agency or may file a mixed-case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). The regulation found at 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint "where the complainant has raised the matter in an appeal to the MSPB and ... 29 C.F.R. � 1614.302 indicates that the complainant has elected to pursue the non-EEO process ...."
As noted above, the Agency improperly identified the complaint at hand. The Commission found that Complainant has alleged a claim of harassment. Based on this identified claim, we find that the complaint does not specifically raise the removal action which was the subject of the MSPB appeal. As such, we find that the Agency improperly dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
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 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 (M0815)
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 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, 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
April 26, 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.
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