0120162464
10-20-2016
Windred H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Windred H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120162464
Agency No. 1C-371-0069-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 28, 2016, dismissing a formal 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
During the period at issue, Complainant worked as a Mail Handler for the Agency in Chattanooga, Tennessee.
On August 18, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On December 2, 2015, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, disability, age, and in reprisal for prior EEO activity.
On December 17, 2015, the Agency dismissed the formal complaint on the 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 on August 18, 2015, was beyond the 45-day limitation period. The Agency further stated that Complainant was familiar with the 45-day limitation period because he had engaged in prior protected activity.
Complainant appealed. On appeal, the Commission reversed the Agency's final decision. The Commission determined that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing the formal complaint on the grounds of untimely EEO Counselor contact because he claimed that he was subjected to a series of related incidents of harassment since July 2009 through present. The Agency was ordered to process the remanded claims (harassment/hostile work environment) "in accordance with 29 C.F.R. � 1614.108 [investigation of complaints]." EEOC Appeal No. 0120161148 (April 14, 2016).
On June 28, 2016, the Agency issued a final decision, which is the subject of the instant complaint. Specifically, the Agency determined that during its "partially completed" investigation of Complainant's harassment/hostile work environment claim, it determined that the instant formal complaint was subjected to dismissal on three procedural grounds. First, the Agency dismissed the instant formal complaint on the grounds that it states the same claim that was raised in two prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that the instant formal complaint raises the same matter in Agency Case Nos. 1H-372-0007-10 and 1H-372-0009-10.
Second, the Agency also dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, 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).
Third, the Agency dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that though initiating contact in August 2015, Complainant indicated that on July 21, 2015, Agency management gave him a pre-disciplinary interview for poor performance and coded "Leave Without Pay" for a job-related injury. The Agency stated, however, Complainant indicated to the EEO Counselor that since 2009, Agency management would not recognized his shoulder injury and that in the instant complaint, Complainant stated that his July 2009 on-the-job injury was coded improperly which caused him financial difficulties.
The Agency stated that Complainant again attempted to resume the EEO process in August 2015, his July 21 2015 issues were either never raised in his discussions with the EEO Counselor or included in the instant complaint. The Agency determined that Complainant had abandoned his July 2015 issues and did not articulate a good cause for extending the regulatory time limits.
Moreover, the Agency stated although the Commission determined that Complainant's August 18, 2015 EEO Counselor contact was timely, Complainant raised his claims in previous complaints and "they are now subject to dismissal not only as identical to your previous claims but because they are years old with no current implications." Therefore, the Agency dismissed the instant complaint on the on the grounds of untimely EEO Counselor contact.
The instant appeal followed.
ANALYSIS AND FINDINGS
Our prior decision in EEOC Appeal No. 0120161148 reversed an earlier Agency decision dismissing this complaint. We ordered the Agency to process the complaint starting at the investigative phase. The Agency has failed to comply with that Order.
By its own admission, in the midst of a "partially completed" investigation, it chose to issue another dismissal decision, again claiming untimely EEO counselor contact, as well as several other grounds for dismissal. The Agency had no authority to do so under our Order. Its proper avenue to contest our prior decision was to file a request for reconsideration, which the Agency did not do. As such, the issue of the timeliness of Complainant's EEO counseling contact has been finally resolved by our prior decision and the Agency can no longer raise it. Moreover, if the Agency had other grounds for dismissing this complaint, they should have been raised in its initial dismissal decision, or even in response to Complainant's appeal of that decision. We cannot allow the Agency to circumvent our remand order in EEOC Appeal No. 0120161148 by issuing serial dismissal decisions, rather than investigating and adjudicating this complaint on its merits.
We also again find that the Agency continues to improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment. A fair reading of his formal complaint shows that Complainant claimed that he was subjected to a series of related incidents of harassment from July 2009 through present.
Same claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).
The Agency dismissed the instant complaint on the grounds that Complainant raised the same matter in a previously filed EEO complaint (Agency Case Nos. 1H-372-0007-10 and 1H-372-0009-10). The record reflects that in a prior formal complaint (Agency Case No. 1H-372-0009-10), Complainant alleged that he was discriminated against on the bases of race, age and in reprisal for prior protected activity when:
1. starting on February 24, 2010, he was prohibited from going into the P&DC;
2. his supervisor coded his leave as Absence Without Leave, not Leave Without Pay, resulting in the cut-off of his OWCP benefits; and;
3. on March 10, 2010, he was given a Pre-Disciplinary Interview about allegedly falsifying a doctor's note by crossing out language that he could return to work;
However, a review of the specific events listed in that prior formal complaint reveals that none of the events identified in that complaint are the same events listed by Complainant in the instant complaint, which are alleged to have occurred since July 29, 2009 and continuing when management had not recognized his shoulder injury as resulting from an assault from a co-worker. Therefore, we find that Complainant has not alleged these events as the same claims as his prior EEO complaint.
Regarding the other formal complaint purportedly raising the same issues as in the instant formal complaint, (Agency Case No. 1H-372-0007-10), we note the record does not contain a copy of that complaint. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, the Agency improperly dismissed the instant complaint on the grounds that it states the same claim that was raised in two previously filed EEO complaints.
Accordingly, we REVERSE the Agency's dismissal of the formal complaint, defined herein as an ongoing 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 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 of this decision. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within sixty (60) calendar days of the date of this decision, 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
October 20, 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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