0120120290
03-30-2012
Peter L. Ellis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120120290
Agency No. 1K-201-0016-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 8, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed, as moot, as untimely and for failure to state a
claim, pursuant to 29 C.F.R. § 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mailhandler at the Agency’s Brentwood Mail Facility in Brentwood,
Maryland.
Complainant had prior EEO complaint against his supervisor, which he
agreed to withdraw in December 2010. However, Complainant claims that
the hostility resumed and he believed that he was being singled out for
disciplinary actions while similarly situated female employees were not
disciplined. On April 18, 2011, Complainant requested EEO counseling.
On July 30, 2011, Complainant filed a formal complaint alleging that he
was subjected him to discrimination on the basis of sex (male) when:
1. On January 23, 2011, Complainant was issued a Letter of Warning for
unsatisfactory attendance, while a female employee was not held to the
same standards.
2. On March 5, 2011, Complainant’s supervisor threatened him and
imposed stricter requirements on Complainant then he did for a female
employee. The Supervisor did not allow him to talk to other employees
but regularly allowed a female employee “to stop working and talk with
the truck drivers for hours.”
3. On April 9, 2011, his supervisor used a leave slip technicality to
issue Complainant a seven-day suspension.
4. Complainant’s supervisor accused Complainant of defrauding the
post office.
The Agency reframed the allegations as raising two sex discrimination
claims: the January 3, 2011 Letter of Warning and the seven-day
suspension.
As relief and as stated in his complaint, Complainant sought equitable
treatment, compensatory relief and a change in supervisors.
The record shows that, as a result of a grievance proceeding, the Letter
of Warning had been removed from Complainant’s file and the suspension
was expunged from his record.
On September 8, 2011, the Agency issued a final decision dismissing the
complaint with regard to the Letter of Warning and the suspension for
failure to state a claim and untimely EEO contact.
First, with regard to its finding of failure to state a claim, the
Agency reasoned that the claims concerning the Letter of Warning and
the suspension had been rendered moot by the grievance settlement on
both matters. Without explanation, the Agency further found that there
was no reasonable expectation that the alleged actions would recur and
that Complainant had received all of the relief to which he was entitled
as a result of a grievance procedure. Thus, the Agency determined that
Complainant was no longer aggrieved.
Next, the Agency determined that Complainant’s claim with regard to
the Letter of Warning was untimely. The Agency reasoned that Complainant
did not contact a Counselor until April 18, 2011, approximately 85 days
after the date of the alleged January 2011 incident.
The instant appeal followed. On appeal, Complainant maintains that he
continues to face disparate treatment from his supervisor, who subjects
him “to habitual acts of bogus charges” and that he has a fear that
his supervisor will find a way to retaliate against him.
ANALYSIS AND FINDINGS
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 who believes that he has been discriminated against
by that agency because of retaliation. 29 C.F.R. § 1614.103(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).
We consider the entirety of Complainant’s allegations and view them
together. The consecutive disciplinary actions, coupled with the alleged
selective enforcement of rules, false accusations and denying Complainant
the ability to engage in behavior that is permitted for his female
coworkers, without harassment, are matters that are part of a series
of alleged discriminatory events. Because he has alleged an ongoing
pattern of harassment and an injury or harm for which there is a remedy,
Complainant has stated a cognizable claim under the EEOC regulations. See
Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Also
see Carmona v. USPS (Western Area), EEOC Appeal No. 0120114228 (February
10, 2012).
Turning to the issue of mootness, 29 C.F.R. § 1614.107(a)(5) provides
for the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in Complainant’s complaint
are moot, the fact finder must ascertain whether (1) it can be said
with assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
Here, the record reflects that additional alleged violations have occurred
after January of 2011. The first prong (no reasonable expectation of
the violation recurring) is not met.
The relief provided has not completely eradicated the effects. Complainant
requested compensatory damages in his complaint. The Agency issued its
dismissal without regard to Complainant’s request for compensatory
relief. The Agency must address the issue of compensatory damages when
the Complainant presents objective evidence that he incurred compensatory
damages and that the damages were related to the alleged discrimination.
See Romo v. USPS (Pacific Area), EEOC Appeal No. 0120113670 (January 13,
2012) (reversing dismissal where the Agency did not request objective
evidence of compensatory damages). Should Complainant prevail in his
claims, the possibility of an award of compensatory damages exists,
and Complainant’s claim is not moot. See Glover v. USPS, EEOC Appeal
No. 01930696 (December 9, 1993).
Finally, we turn to the issue of timeliness of the EEO contact for
the first allegation (that on January 23, 2011, the Agency issued
Complainant a Letter of Warning, but a female employee was not held
to the same standard). We find that the record provides sufficient
undisputed proof that Complainant contacted the EEO Counselor on April
18, 2011. We find, however, that Complainant’s remaining allegations
were timely and are part of a claim of ongoing harassment. The Supreme
Court has held that a complainant alleging a hostile work environment
will not be time barred if all acts constituting the claim are part of
the same unlawful practice and at least one act falls within the filing
period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061
(June 10, 2002). Therefore, the Letter of Warning should be considered
as part of Complainant’s ongoing harassment claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing
Complainant's complaint. We REMAND the complaint to the Agency for
further processing in accordance with this decision and 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 tends 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
March 30, 2012
__________________
Date
2
0120120290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120290