0120112450
02-23-2012
Jorge L. Rosario, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Jorge L. Rosario,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120112450
Agency No. 4B-060-0021-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 15, 2011, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Letter Carrier at the Agency’s Washington Street Station in Hartford,
Connecticut. On February 8, 2010, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the basis
of national origin (Hispanic) when:
1. On October 29, 2009, his confidential medical information was discussed
on the work room floor during a safety telecom; and
2. On November 9, 2009, Complainant was subjected to a racial slur by
the station manager who called him a “spic.”
On March 3, 2010, the Agency dismissed the complaint for failing to
state a claim. Complainant appealed, and the Commission reversed the
Agency’s decision, stating the following:
In claim 1, Complainant alleged that management discussed his medical
information on the workroom floor. The Rehabilitation Act provides
that, with limited exceptions, information obtained regarding the
medical condition or history of any employee shall be treated as a
confidential medical record. 29 C.F.R. § 1630.14. By its terms, this
requirement applies to confidential medical information obtained from
“any employee,” and is not limited to individuals with disabilities.
See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13,
2000). Although not all medically-related information falls within this
provision, documentation or information of an individual's diagnosis
or symptoms is medical information that must be treated as confidential
except in those circumstances described in 29 C.F.R. Part 1630. See Id.;
see also EEOC Enforcement Guidance on the Americans with Disabilities Act
and Psychiatric Disabilities, No. 915.002, Question 15 (Mar. 25, 1997).
Accordingly, we find that Complainant has alleged a claim of unlawful
medical disclosure which states a claim, and the Agency improperly
dismissed claim 1.
In claim 2, Complainant alleged that a manager called him a “spic.”
The Commission has held that, under certain circumstances, a limited
number of highly offensive epithets or slurs about a federal employee's
race or national origin may state a claim or support a finding of
discrimination under Title VII. See Yabuki v. Department of the Army,
EEOC Request No. 05920778 (June 4, 1993). The term “spic” is a
particularly offensive epithet historically used against Hispanics. If
proven true, the use of this inflammatory ethnic epithet by a supervisor
would render the workplace hostile. See Antero C. Viveiros v. U.S. Postal
Serv., EEOC Appeal No. 0120083616 (January 8, 2009) (Commission found
that allegation that Supervisor called Complainant a “spic” stated
a claim of hostile work environment). Thus, we find that the Agency
improperly dismissed claim 2.
Rosario v. U.S. Postal Serv., EEOC Appeal No. 0120102008 (Sep. 24, 2010).
Accordingly, the Agency commenced an investigation on the complaint and,
on October 27, 2010, sent Complainant a request for an affidavit along
with instructions and forms for completing the affidavit. Complainant
claimed he never received it, and the investigator resent the letter with
the accompanying instructions on December 29, 2010. The investigation
was completed, but it was missing affidavits from both Complainant and
the Responsible Management Official.1
In its February 15, 2011 final decision, the Agency dismissed the
complaint pursuant to 29 C.F.R. § 1614.107(a)(7) for failure to
cooperate, arguing that Complainant failed to return the requested
affidavit despite a written warning in the affidavit packet sent to him
that failure to provide the affidavit could result in the dismissal
of his complaint. In his appeal, Complainant provided a copy of the
EEOC Counseling report which included a lengthy narrative from the
EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(7) provides for the dismissal
of a complaint where the Agency has provided the Complainant with a
written request to provide relevant information or otherwise proceed with
the complaint, and the Complainant has failed to respond to the request
within fifteen days of its receipt, or the Complainant's response does not
address the Agency's request, provided that the request included a notice
of the proposed dismissal. The regulation further provides that, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Generally, the
Commission has held that an Agency should not dismiss a complaint when it
has sufficient information upon which to base an adjudication. See Ross
v. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the Complainant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission as allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998).
In the instant case, we find that, although Complainant has not
explained why he did not respond to the request for an affidavit, there
is insufficient evidence to support a conclusion that he purposely
engaged in delay or contumacious conduct. Instead, we find that there
was sufficient information in the record to have permitted the Agency
to adjudicate on the merits. A review of the record indicates that
Complainant spoke with the EEO Counselor assigned to his case and provided
extensive information as detailed in the Counselor's report. Further,
Complainant named witnesses. The information provided on Complainant's
claims was sufficient to identify the specific management actions
he is concerned with, the relevant timeframes and the responsible
management officials. The investigator did in fact obtain affidavits
from six witnesses. Whether or not the statements made by Complainant
are sufficient to prove his claim can be addressed in the adjudication
on the merits of his complaint.
Accordingly, we conclude that the Agency should have allowed for
adjudication on the merits rather than dismissing the complaint. The
dismissal is REVERSED and the complaint is hereby REMANDED to the Agency
for further processing in accordance with this decision.
ORDER
Within sixty (60) calendar days of this decision becoming final, the
Agency shall issue Complainant the report of investigation and notice
of his right to request a hearing pursuant to 29 C.F.R. § 1614.108(f).
If Complainant does not request a hearing within the timeframe for
doing so, the Agency shall take final action pursuant to 29 C.F.R. §
1614.110(b).
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 (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
February 23, 2012
__________________
Date
1 This individual no longer worked for the Agency and declined to submit
an affidavit.
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0120112450
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112450