0120160174
01-19-2016
Jean F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jean F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160174
Agency No. 4G-752-0223-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 10, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Rural Carrier Associate at the Agency's Sulpher Springs, Texas Main Post Office.
On August 13, 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 sex, disability, and in reprisal for prior EEO activity when:
1. on May 11, 2015, he spoke to the Postmaster about his concern that a co-worker was received special treatment from other co-workers;
2. since May 11, 2015 and continuing, he was denied leave;
3. on May 11, 2015 and continuing, his co-workers harassed him and threatened to deny him vacation time; and
4. on an unspecified date, he was denied paid leave for a physician visit.
On September 10, 2015, the Agency issued the instant final decision. First, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated July 31, 2015, was delivered to Complainant's address of record on August 3, 2015. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. Complainant filed the instant formal complaint on August 13, 2015, but it was returned to his attorney's firm for inadequate postage. Complainant then sent his correspondence to the Agency on August 28, 2015, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Second, the Agency also dismissed claim 1 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
On appeal, Complainant, through his attorney, argues that Complainant timely filed his complaint on August 13, 2015 and that his attorney "was surprised when [Complainant's] complaint was returned on August 28, 2015 with an indication that it was short four cents of postage and had been returned by the Agency. Apparently, the Agency had made recent changes to postage rates for, among other classes of mail, certified mail that took effect on
May 31, 2015...[Complainant's] counsel was surprised to receive this response from the Agency, as no other certified mail items sent by the individuals in counsel's office had been returned in the time since the May 31, 2015 rate change." In support of its assertions, Complainant's attorney submitted an affidavit from a Legal Assistant stating that during the relevant period, she was unaware of the postage change.
Further, Complainant states that he is subjected to ongoing harassment. For instance, Complainant states Agency management has allowed his co-workers to threaten him "including threatening to interfere with [Complainant's] ability to use his leave time, if [Complainant] complained about the special treatment they afforded to female rural carriers...now, the Agency attempts to turn a blind eye to this discrimination dismissal of [Complainant's] Complaint."
The record contains a copy of the legal Assistant's affidavit dated November 13, 2015. Therein, the Legal Assistant stated that she "was unaware of a change in postage rate change of which I was aware from January 2015. If I had received notice of this postage change, I would have updated the chart of postage rates used by our firm immediately...I have personally witnessed certified mail, return receipt requested items be mailed from our office from May 31, 2015 to August 30, 2015, including items mailed to government agencies, which were mailed using January 2015 postage rates. Based on the change to postage rates for certified mail, return receipt requested items, among others, each certified mail, return receipt requested item would not have had sufficient postage...[Complainant's] Formal EEO Complaint was the first certified mail, return receipt requested item that was returned to our office with a request for additional postage from May 31, 2015 to August 30, 2015. This includes items that were mailed to other government agencies."
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely filing (claims 1 - 4)
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 notice of the right to do so.
In this case, we note that Complainant, on appeal, states that he filed the instant formal complaint on August 13, 2015 but it was returned to his attorney's firm on August 30, 2015 for inadequate postage. We further note that Complainant's attorney immediately took action to take care of the extra postage fee. Under these facts, we will exercise our discretion and find adequate reason to excuse the untimely filing. 29 C.F.R. � 1614.604(c).
Failure to state a claim (claim 1)
The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim 1for failure to state a claim. A fair reading of the complaint, Complainant claimed that he was subjected to a series of related incidents of harassment when from May 2015 to present, when Agency management allowed his co-workers harass him and threat to deny his vacation time, was denied leave time, and was denied paid leave for a physician visit.
As a remedy, Complainant requested to that the harassment ceased, to be promoted to a Regular Carrier position; reimbursement of denied sick time, and attorney's fees. 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 claims 1 - 4 for untimely filing and claim 1 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.
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
January 19, 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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