0120160658
03-02-2016
Melina K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Melina K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160658
Agency No. 1E-981-0029-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 10, 2014, dismissing her 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 Mail Processing Clerk at the Agency's Everett, Washington facility.
On June 25, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On October 6, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior EEO activity.
On November 10, 2014, the Agency issued a final decision. Therein, the Agency found that the formal complaint was comprised of the following two claims:
1. on April 18, 2014, management offered Complainant a modified job assignment in Everett, Washington; and
2. on or about June 25, 2014, her supervisor gave her an investigative interview for attendance.
The record reflects that Complainant alleged that when Agency management offered her a light duty assignment at its Everett, Washington facility, her daily commute to the facility caused delays due to heavy traffic and prevented her from arriving to work on time. The record further reflects after Complainant filed a grievance concerning her assignment, the parties settled the grievance, and the Agency agreed to pay Complainant $4,056.31 for travel expenses.
In its November 10, 2014 final decision, the Agency dismissed claims 1 and 2, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. Regarding claim 1, the Agency determined that the matter raised in this claim was a collateral attack on the program administered by the Department of Labor's Office of Workers' Compensation Programs (OWCP). Specifically, the Agency determined that Complainant was offered the modified job assignment as restoration for her injury, and hence her claim fell within the jurisdiction of the OWCP.
Regarding claim 2, the Agency noted that Complainant was not disciplined or subjected to any adverse personnel action as a result of the alleged events.
The Agency also dismissed claim 1 on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on June 24, 2015, which it found to be beyond the 45-day limitation period. The Agency further noted that filing an internal appeal is not a valid excuse for missing the 45-day limitation period.
Complainant, on appeal, argues that she is subjected to ongoing harassment. Complainant further argues that claim 1 "was solely against the USPS. The Department of Labor became involved in the job assignment after appellant failed to resolve matter with the agency. USPS policy for assigning injured employees, ELM 456, was ignored by management."
Further, Complainant argues that in regard to claim 2, the "investigative interview for attendance was another attempt by management to terminate appellant's employment and to shut her up about abuse and misuse of employees."
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to state a claim (claims 1 and 2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any 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, .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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Contrary to the manner in which the formal complaint was identified in the final decision, the instant formal complaint and EEO Counselor's Report reflect a series of alleged incidents that include Complainant being harassed by Agency management. Complainant, on appeal, states that she is subjected to ongoing harassment. As a remedy, Complainant requested that the harassment ceased, reimbursement for mileage and medical expenses, and compensatory damages. 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).
Untimely EEO Counselor contact (claim 1)
The Agency also improperly dismissed claim 1 on the grounds of untimely EEO Counselor contact. The record reflects that Complainant initiated EEO Counselor contact on June 25, 2014. The Commission has held 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 that 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 various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's June 25, 2014 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 1 is part of that harassment claim, we find that the Agency improperly dismissed claim 1on the grounds of untimely EEO Counselor contact.
We REVERSE the Agency's dismissal of the formal complaint on the grounds of untimely EEO Counselor contact and 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
March 2, 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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