0120092429
10-20-2009
Mark Griffin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark Griffin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092429
Agency No. 4K-290-0099-08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 22, 2009 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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., 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.
During the period at issue, complainant was employed as a Letter
Carrier at the agency's Calvin Street Carrier Annex in Greenville,
South Carolina.
On July 10, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On October 17, 2008, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to harassment and
a hostile work environment on the bases of disability (post tibial
tendonitis), age (over 40), and in reprisal for prior protected activity
when:
(1) on March 21, 2008, his supervisor approached him at his case and
inappropriately discussed the denial of his leave request pending
documentation;
(2) after reporting negative statements made to him on April 2 and 18,
2008 by a customer, management did not act appropriately;
(3) in July 2008, his begin tour (BT) schedule was changed;
(4) on unspecified dates, his requests for leave (medical appointments)
were denied; and
(5) on unspecified dates, management harassed him about his disabilities
and family issues.1
On November 10, 2008, the agency issued a revised partial dismissal.
The agency accepted for investigation claim (4). However, the agency
dismissed claims (1) - (3) on the grounds of untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency
noted that complainant had engaged in prior protected activity and was
aware of the time limits for initiating EEO Counselor contact. The agency
also dismissed claim (5) pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. The agency found that the matters identified
in claim (5) were isolated incidents that were insufficiently severe or
pervasive to rise to the level of actionable harassment.
At the conclusion of investigation concerning claim (4), complainant was
provided with a copy of the report of the investigation and notice of
the right to request a hearing before an EEOC Administrative Judge or
a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On April 22, 2009, the agency issued the
instant final decision.
In its April 22, 2009 final decision, the agency concluded that
complainant failed to prove that he was subjected to discrimination as
alleged regarding claim (4). The agency determined that complainant
did not establish a prima facie case of disability, age and reprisal
discrimination.2 The agency further found that assuming, arguendo, that
complainant established a prima facie case of disability, age and reprisal
discrimination, management articulated legitimate, nondiscriminatory
reasons for its actions which complainant failed to show were a pretext.
Claims 1 - 3, and claim 5
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In its November 10, 2008 revised partial dismissal, the agency dismissed
claims (1) - (3) on the grounds of untimely EEO Counselor contact
and dismissed claim (5) on the grounds of failure to state a claim.
Upon review, however, we find that the agency improperly dismissed claims
(1) - (3) on the grounds of untimely EEO Counselor contact and claim
(5) for failure to state a claim. The record reflects that complainant
initiated EEO Counselor contact on July 10, 2008. The Commission finds
that "[b]ecause the incidents that make up a hostile work environment
claim collectively constitute one unlawful employment practice, the
entire claim is actionable, as long, as at least one incident is part of
the claim occurred within the filing period. This includes incidents
that occurred outside the filing period that the [complainant] knew
or should have known were actionable at the time of their occurrence."
EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised
July 21, 2005) (citing National Railroad Passenger Corp v. Morgan,
536 U.S. 101, 117 (2002)).
The record reflects that claims (1) - (3) comprise incidents that
are clearly related to each other and to claim (4) by an analogous
theme, and at least one these incidents occurred within the 45-day
time period preceding to complainant's July 10, 2008 EEO Counselor
contact. Specifically, complainant claimed that he was subjected
to harassment/hostile work environment when on October 8, 2008, his
supervisor approached him at his case and inappropriately discussed
the denial of his leave request pending documentation (claim (1));
after reporting negative statements to him on April 2 and 18, 2009 by a
customer, management did not act appropriately (claim (2)); in July 2008,
and his BT schedule was changed (claim (3)). Based on the foregoing,
we find that the agency improperly dismissed claims (1) - (3) on the
grounds of untimely EEO Counselor contact. With respect to claim
(5), complainant alleged that he was subjected to harassment/hostile
work environment when on unspecified dates, management harassed him
about his disabilities and family issues. We find that claim (5)
is sufficient to state a cognizable claim under the EEOC regulations.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Claim 4
The Commission acknowledges that the agency did investigate claim (4)
and issued a decision on the merits. However, the Commission determines
that claim (4) and the hostile work environment claim (claims (1) - (3)
and (5)) were raised in the same formal complaint and are factually tied
to each other as they involved incidents which occurred during the same
time frame and involved the same management officials. Therefore, these
claims should not be processed separately. EEOC's Management Directive
(MD)-110 cautions against fragmenting EEO complaints. See MD-110,
Ch. 5, III. Therefore, we are vacating the agency's final decision on the
merits of claim (4), and are ordering the agency to issue a new decision
on the merits of the entire complaint once it supplements its earlier
investigation with information about the hostile work environment claim
(claims (1) - (3) and (5)).
Accordingly, we VACATE the agency's final decision finding no
discrimination concerning claim (4). Moreover, we REVERSE the revised
partial dismissal of claims (1) - (3) on the grounds of untimely EEO
Counselor contact and claim (5) 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
The agency is ORDERED to process the remanded hostile work environment
claim (claims (1) - (3) and (5) as defined in this decision) in accordance
with 29 C.F.R. � 1614.108, for a supplemental investigation to the one
already conducted on the other claim (claim (4)) in this complaint.
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 (15) 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 acknowledgement 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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
October 20, 2009
__________________
Date
1 Complainant asserted that he is constantly exhorted to work at
a quicker pace; is monitored about the speed of his work, although
similarly situated co-workers are not accorded such treatment; and is
publicly chastised in the presence of co-workers.
2 For purposes of analysis only, and without so finding, the Commission
presumes that complainant is an individual with a disability within the
meaning of the Rehabilitation Act.
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0120092429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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