0120160063
02-09-2016
Robin H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Robin H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120160063
Agency No. 4G-330-0165-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's August 21, 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., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Plantation Postal Facility in Plantation, Florida.
On May 25, 2015, Complainant requested EEO Counseling. On June 19, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race ("Hispanic"), national origin (Hispanic), sex (male), disability (unspecified), age (52), and reprisal for prior, unspecified, protected EEO activity, when:
1. On December 31, 2014, Complainant was not given the opportunity to sign up for the overtime desired list and was denied overtime on January 1, 2015; and
2. On May 20, 2015, Complainant was denied overtime due to his using his sick leave under FMLA and his "HIPPA rights" were violated.
On August 21, 2015, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO contact and 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant's EEO contact was made on March 12, 2015 and his pre-complaint counseling was made seventy days after the alleged discriminatory incident. The Agency reasoned that, because Complainant had engaged in prior EEO activity, he was deemed to have constructive knowledge of the EEO complaint process and applicable time periods for filing claims.
Next, the Agency concluded that the proper forum for a complainant to have raised a challenge to decisions made in the grievance process is through that forum, not the EEO process. The Agency dismissed the complaint, concluding that Complainant was seeking collateral enforcement of a grievance decision. The Agency dismissed the entire complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
The Agency dismissed the complaint for untimely EEO counseling. 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 maintains that his claims are timely, because the alleged discrimination continued through the end of the quarter (March 2015) and he made contact on March 12, 2015. He is also alleging a continuing violation Moreover, the record shows EEO contact, again, on May 25, 2015. He also claims the Agency intentionally misrepresented the dates of his claims and that the Agency denied him opportunities for the fiscal year quarter that ended in March of 2015, rather than the dates used by the Agency to calculate the time limits. He also claims that the Agency erred in dismissing his claims of retaliation and failing to investigate his EEO complaint.
In this case, the record shows that Complainant made timely EEO contact with regard to his claims that he was denied overtime. In addition, Complainant is alleging that he has been subjected to an ongoing pattern of discrimination and retaliation that has taken many forms including not allowing him to sign up for overtime because he used FMLA leave, subjecting him to harsher standards. He is alleging a hostile work environment. 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 EEO counselor contact was timely made from some of the events he proffers as examples of the alleged ongoing hostile work environment.
For these reasons, we find that the Agency failed to meet its burden of establishing that Complainant's contact was untimely made.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In this case, Complainant is alleging that his Station Manager treated him differently than others outside his protected group, by refusing to allow him to place his name on the overtime desired list, continually bypassing him for overtime opportunities, and refusing to approve overtime for Complainant due to his use of sick leave under the Family Medical Leave Act. He claims that he was treated differently than the women who were granted overtime. He claims that he was singled out because he is over age 40, of Hispanic origin and because of his prior EEO activity. He identified several women whom he claimed were accommodated by the Agency, while the Agency did not accommodate him when he took FMLA leave. He alleged that the Agency discriminated against him and denied his right to work comparable hours when compared to those outside his protected group, whom he named.
Further, with regard to his retaliation and HIPPA claims, we find that the Agency erred in dismissing the complaint for failure to state a claim. Complainant is challenging the acts of an Agency manager, rather than the decision of an adjudicatory body. See Ramsey v. United States Postal Service, EEOC Appeal No. 07A10080 (July 18, 2003) (discrimination found regarding the Agency's denial of an FMLA leave request).
Accordingly, the Agency decision to dismiss the complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER
The Agency is ordered to process the remanded claim 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 (M0815)
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 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, 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
February 9, 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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