0120121759
06-20-2012
Juan Rodriguez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Juan Rodriguez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121759
Agency No. 4F-940-0099-11
DECISION
Complainant filed an appeal with this Commission from the Agency's final decision dated January 9, 2012, dismissing a formal complaint of unlawful employment discrimination.
BACKGROUND
During the period at issue, Complainant worked as a City Letter Carrier at the Agency's facility in Santa Rosa, California. On December 16, 2011, Complainant filed a formal complaint, claiming that the Agency subjected him to discrimination.
In its final decision, the Agency determined that Complainant's formal complaint was comprised of the following claim:
Complainant alleged discrimination based on harassment/hostile work environment in that for the past two years, he has been subjected to harassment in regards to: he has been denied a route adjustment; management made the following comments to Complainant "lazy goof off", "you spent your morning talking", "you were reading mail" "you are going to be in trouble", "you are on the top of the list of the postmaster", "You are on her radar" and "if you need anything you have to come through me", management falsified Complainant's return to the office time, management questioned his doctor visit following an accident, Complainant was constantly followed in the building, and Complainant was issued a Notice of Removal.
The Agency dismissed Complainant's formal complaint for failure state a claim reasoning that Complainant failed to identify a basis of discrimination. The Agency noted that Complainant wrote in his formal complaint "harassment horrible environment to work in" but did not check a basis on his formal complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's final decision. Complainant elaborates on the alleged incidents comprising his hostile work environment claim. In addition, Complainant makes reference on numerous times to a specified medical condition, with which he has been diagnosed.
In response, the Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's complaint for failure to state a claim. We find that a fair reading of the record reflects that Complainant is alleging that he was subjected to discrimination on the basis of disability. We acknowledge that Complainant did not check a box on the formal complaint form with respect to the basis or bases of discrimination; however, in an attachment to his formal complaint and on appeal Complainant references a specific medical condition.
The Commission has previously held that a complainant may delete or add bases of discrimination during the compliant process without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission gives broad application to the court's decision in Sanchez. Complainants are given liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing the charges. Edwards v. Department of Defense, EEOC Request No. 05910830 (December 19, 1991); Castillo v. U.S. Postal Service, EEOC Appeal No. 01956860 (March 22, 1996) (basis of discrimination not made clear until appeal).
Based on the foregoing, we find that Complainant is alleging disability discrimination.1
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint 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 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 (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
June 20, 2012
Date
1 We note that race is listed as a basis in the EEO Counselor's Report. However, it is unclear whether Complainant wanted to include race as a basis in his formal complaint. Therefore, if Complainant wishes to amend his complaint to include race, as well as any other EEO basis, he should contact the Agency's EEO Director, in writing, with respect to this request. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) Chapter 5, Section III, B (Nov. 9, 1999).
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0120121759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121759