0120142121
10-07-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120142121
Agency No. 1G-781-0028-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 30, 2014, 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.
BACKGROUND
During the period at issue, Complainant worked as a Building Equipment Mechanic at the Agency's facility in Corpus Christi, Texas.
On March 14, 2014, Complainant contacted an EEO Counselor. During EEO counseling, Complainant alleged that he was being harassed. Specifically, Complainant asserted that his supervisor yelled at him on February 26, 2014 when he was standing at the clock, three minutes prior to his official end time, waiting to clock out. Complainant asserts that on February 27, 2014, he was yelled at by his supervisor for not having a hard hat on while working on the floor. Complainant alleges that there were other employees on the floor also not wearing a hard hat, but that he was the only one yelled at. Complainant also stated that he was yelled at on March 13, 2014 when he took his 10:00 pm break, as everyone else did, to check his Agency email account. Complainant asserts that his supervisor ordered him off of the Agency's computer and stated that he should check his Agency email account on his own time.
On April 15, 2014, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race and in reprisal for prior protected activity.
On April 30, 3014, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant's formal complaint was comprised exclusively of the following matter:
on February 26, 2014, Complainant's supervisor yelled at him. Complainant alleges that his supervisor has created a hostile work environment.
The Agency acknowledged that Complainant may have felt disrespected and offended by the alleged discriminatory event. However, the Agency determined that Complainant was not aggrieved because he did not suffer a personal loss or harm with respect to a term, condition or privilege of employment. The Agency determined that the supervisor's conduct was not sufficiently severe or pervasive to create a hostile work environment for a reasonable person.
On appeal, Complainant states that his supervisor is "...in the habit of making racist statements in front of other people, including during a weekly safety meeting [where his supervisor] referred to [another employee] as the 'Cajun white boy.'" Complainant also alleged that employees are called "Whitey" on a daily basis. Complainant claims that some employees will not respond, but that he feels his supervisor has crossed the line, particularly in denying Complainant medical care. Complainant references medical care for the first time on appeal and makes no other notes about this statement. Additionally, Complainant argued that the instant complaint was dismissed in order to keep it from an administrative judge in a separate Agency complaint currently pending hearing. In response, the Agency states that the case Complainant is referencing to in his appeal involves an unrelated issue, a denied promotion, and is outside of the Commission's jurisdiction.
ANALYSIS AND FINDINGS
As a threshold matter, the Commission determines that the formal complaint was not comprised exclusively of the matter identified in the Agency's final decision. Instead, a fair reading of the pre-complaint documents and Complainant's formal complaint, reflects that Complainant claimed he was harassed through a variety of events that encompassed more than the above referenced February 26, 2014 incident.
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).
A fair reading of Complainant's complaint reflects that Complainant alleged a pattern of harassment. In its final decision, the Agency distilled the matters raised in Complainant's formal complaint to a single allegation relating when Complainant was yelled at by his supervisor on February 26, 2014. We find, however, that the formal complaint is not comprised exclusively of this matter, but instead, addresses a variety of incidents preceding this incident. For example Complainant alleged that he was yelled at for using the Agency computer to check his work email while he was on break, that he was yelled at for waiting by the clock three minutes prior to his shift ending, that he was the only employee yelled at for not wearing a hard hat while working the floor, despite other workers being nearby. We therefore find, that Complainant has stated one valid claim of harassment consisting of a series of actions as discussed in Complainant's pre-complaint and formal complaint documents. 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).
As a final matter, both Complainant and the Agency make reference to a separate formal complaint filed by Complainant and address the issue of whether the subject claims have any nexus to that other formal complaint. We have reviewed the record, found no documentation regarding that separate formal complaint, and therefore find it unnecessary to address this matter further.
Accordingly, the Agency's final decision dismissing the formal complaint is REVERSED. The complaint as defined herein is REMANDED 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 claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (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
October 7, 2014
__________________
Date
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0120142121
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142121