0120150967
03-23-2016
Emanuel W.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emanuel W.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120150967
Agency No. 2014-25849-FRA-03
DECISION
Complainant filed a timely appeal with this Commission from the Agency's January 6, 2015 decision, dismissing his 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. We accept the appeal pursuant to 29 C.F.R. � 1614.405(a) .
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Railroad Safety Inspector Federal Railroad Administration, GS-2121-12, at the Agency's Region 3 Motive Power and Equipment Railroad Safety Inspector facility in Atlanta, Georgia.
On August 18, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the basis of reprisal for protected EEO activity when:
1. Management ignored or did not satisfactorily respond to Complainant's questions concerning train safety issues;
2. "Upon raising [his] hearing disability and tinnitus condition to [his] manager, [his] manager requested that [Complainant] obtain a hearing test and stated that [he] should telework, as to not place himself in harm's way, until the hearing test is performed."
Complainant received the Notice of Right to File on August 6, 2014. The record shows that Complainant submitted multiple allegations over a short period of time. The Agency acknowledged that it received two complaints from Complainant on August 12, 2014.
The EEO Counselor stated, in the accompanying August 5, 2014 cover letter transmitting the Notice of the Right to File a Complaint that Complainant alleged that he had "been treated differently" than his coworkers and that his supervisor's constant harassment "has caused an increase in his hearing disability."
The Agency docketed the allegations as three separate complaints, which the Agency numbered sequentially. The three complaint numbers were Agency No. 2014-25848, Agency No. 2014-25849 and Agency No. 2014-25850. The instant complaint at issue is Agency No. 2014-25849.
On January 6, 2015, the Agency issued a final decision dismissing complaint Agency No. 2014-25849 for two reasons: 1) failure to state a claim and 2) untimely EEO complaint. With regard to its failure to state a claim determination, the Agency found that Complainant did not allege that he suffered sufficient harm to be aggrieved. The Agency also found that the incidents did not rise to the level of harassment or create a hostile work environment because the Agency concluded that the incidents were not sufficiently severe or pervasive so as to alter the conditions of employment. The Agency further reasoned that Complainant was raising "transportation safety issues [which] would be more suitably raised in another forum that deals with transportation safety issues."
Next, the Agency found that Complainant failed to prove that his complaint was timely filed. The Agency reasoned that Complainant filed his complaint on December 11, 2014, rather than on or around August 18, 2014. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that his complaint was timely filed on August 18, 2014, but the Agency failed to process that complaint. Complainant asserts that the Agency told Complainant that he needed to resubmit the complaint and used the date of the second submission as the complaint filing date, rather than the date of his originally filed complaint.
On appeal, Complainant further asserts that this is not a collateral attack because his position is that of a transportation safety inspector. In addition, he argues that the Agency erred when it dismissed his claims of a hostile environment and maintains that he suffered tangible, adverse effects on his employment due to the Agency's retaliatory actions. In one of his statements in support of his appeal, Complainant highlights OFO's recent decision in his favor with regard to an earlier retaliation claim.
In response, the Agency maintains that Complainant failed to provide the Agency with his proof of the timely filing of the complaint, and, instead, Complainant only provided the proof to the OFO in his reply brief. The Agency also acknowledges that it received the two other complaints that were timely filed from the date of the issuance of the two other Notices of Right to File, but the Agency argues that Complainant missed the deadline for the instant complaint.
ANALYSIS AND FINDINGS
Untimely EEO Complaint
EEOC Regulation 29 C.F.R. � 1614.106(b) requires that complaints of discrimination should be filed with the appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint. EEOC regulation 29 C.F.R. 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits.
The record shows that Complainant received the Notice of Right to File on August 6, 2014. Complainant timely filed his EEO complaint Agency No. 2014-25848, but the Agency refused to accept his complaint. In this case, we find that Complainant's EEO complaint was timely submitted from the date of his receipt of the Notice of Right to File.
In addition, Complainant is alleging that, since April 30, 2014, he was subjected to an ongoing pattern of discriminatory and retaliatory harassment that has taken many forms, including discounting Complainant's observations as a Transportation Safety Inspector, while crediting the recommendations of his colleagues, harassing him by requiring him to telework until he got his hearing checked,2 subjecting him to threats, and refusing to process his EEO complaints. The United States 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002).
We find that the Agency failed to meet its burden of establishing that Complainant's complaint was untimely filed.
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 or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In this case, a fair reading of the complaint shows that Complainant has alleged ongoing disparate treatment, as well as retaliatory harassment. He alleged that the manager treated him less favorably than other safety inspectors due to his EEO activity and hearing disability. He said that his supervisor "constantly puts out information provided by other inspectors, but not Complainant's warnings.3 He claims his supervisor harassed him to the point that Complainant's hearing disability was elevated and the supervisor required that Complainant obtain a hearing test and told him that he did not want Complainant to make any safety inspections until his hearing test was performed. Because Complainant's position was that of a transportation safety inspector, we find that Complainant's allegations are sufficient to state a claim of a hostile work environment and unlawful disparate treatment.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The remanded claims include claims one through seven and the claim that, on September 5, 2014, Complainant became aware that management did not discipline a co-worker who provided a false witness account against Complainant. 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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 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. 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
March 23, 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 This complaint alleges retaliation, but it is clear that Complainant, by implication, is raising a possible per se violation by alleging that that he was subjected to adverse treatment due to his supervisor's perception of Complainant's hearing impairment.
3 We do not construe Complainant's claim to be a collateral attack better suited for a different forum. In this case, he is alleging that his manager treated him differently with regard to his duties as a transportation safety inspector. Transportation safety issues are essential to his job.
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