0120160087
06-08-2016
Rich P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rich P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120160087
Agency No. 1F901008215
DECISION
Complainant filed a timely appeal with this Commission from the Agency's August 13, 2015 decision, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Expeditor / Clerk at the Agency's Los Angeles Processing and Distribution Center facility in Los Angeles, California.
On April 8, 2018, 2015, Complainant requested EEO Counseling. On July 19, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), sex (male), and age (53) when:
1. On October 16, 2014, Complainant was not paid for 1.50 hours that he worked;
2. On an unspecified date in March of 2015, Complainant became aware that he was charged AWOL for absences on February 12-15, 2015 and was not paid the sick leave that he requested; and
3. On March 5, 2015, Complainant was issued a Letter of Warning for Failure to Follow Instructions.
The record shows that, on February 11, 2015, Complainant complained to management that he had been improperly told to leave his assignment. On February 25, 2015, Complainant was told that his supervisor "changed her mind" and she would not restore the unpaid 1.5 work hours that were promised to Complainant as part of a verbal grievance agreement to settle the issue of his not being paid for hours worked on October 16, 2014. On February 25, 2015, Complainant learned that his supervisor has informed the shop steward that their settlement "deal was off." On March 5, 2015, the Agency issued him a Letter of Warning. Complainant asserts that he did not learn that he had been placed on AWOL until he received the notice "after March 19, 2015." According to Postal policy, management usually notifies employees of their placement on AWOL via the issuance of a PS Form 3971. Complainant alleges that the supervisor ignored agency protocol when she refused to provide Complainant with the reasons on a PS-3971.
The record shows that Complainant contacted the EEO counselor on April 8, 2015 and again on May 17, 2015. According to the Agency, the April 8, 2015 contact was only for claim 1 and the contact made on May 17, 2015 were for claims 2 and 3. Complainant disagrees and asserts that the issue of the withdrawal of the grievance settlement was included in the pre-counseling requested and notes the PS Form 2570 EEO Dispute Resolution Specialist (DRS) Inquiry Report in support of his position.
The Agency issued a final decision dismissing the complaint as untimely raised with the EEO Counselor. The Agency asserts that Complainant did not seek counseling until May of 2015. The Agency noted that Complainant did not claim that he was unaware of the time requirements and reasoned that the EEO poster is posted at the facility. The Agency reasoned that Complainant was aware by March 5, 2015 that the Agency had charged him AWOL for his absence on February 12-13, 2015, noting that he received a Letter of Warning on March 5, 2015. The Agency further concluded that his formal complaint included issues which Complainant failed to raise when he submitted his pre-complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
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.
On appeal, Complainant asserts that he made timely EEO contact within the 45 day time limit for all of his claims, based on the date of his discovery of the alleged discriminatory acts.
In this case, the record shows that Complainant sought EEO counseling on April 8, 2015, for the incidents at issue, which included the March 5, 2015 Letter of Warning and the notification to him that he was placed on AWOL. We note that Complainant is not challenging the action based on the incident on October 16, 2014. Rather, he is alleging that his supervisor retaliated against him on February 25, 2015, when she announced that she was rescinding their verbal agreement and was refusing to restore the 1.5 hours of pay to which she previously agreed. This occurred after Complainant challenged a management action on February 11, 2015, when he was told to leave his assignment. We read his claim as alleging ongoing retaliation and harassment.
Further, 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 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). In this case, Complainant's April 8, 2015 EEO counselor contact was timely made from at least one of the events he proffers as examples of the alleged ongoing discriminatory and harassment.
For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's contact was untimely made with regard to the alleged claims.
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
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
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.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
June 8, 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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