0120122776
12-18-2012
Damon C. McDowell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Damon C. McDowell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122776
Agency No. 4G-770-0076-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 6, 2012, 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 City Carrier at the Agency's Oak Forest Post Office facility in Houston, Texas.
On January 5, 2012, Complainant contacted an EEO Counselor concerning his claim of discrimination. On March 8, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), sex (male), and age (49) when, on January 3, 2011, Complainant was issued a letter initiating his removal from his position. In addition, Complainant indicated that he was not provided work from May 17, 2011 through September 15, 2011; January 7, 2012 through February 23, 2012; and as of March 1, 2012.
The Agency defined the complaint as a claim of discrimination based on race, sex, and age when:
1. From May 17, 2011 through September 15, 2011, Complainant was not provided work and forced to use leave;
2. On January 3, 2012, Complainant was issued a Notice of Proposed Removal; and
3. As of March 1, 2012, Complainant has not been provided with work.
The Agency dismissed claims (1) and (2); and initially accepted claim (3) for investigation. With respect to claim (1), the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to raise this claim in a timely manner with an EEO Counselor. The Agency noted that Complainant's January 2012 contact was beyond 45 calendar days from the most recent event in September 2011. As for claim (2), the Agency dismissed this claim, pursuant to 29 C.F.R. � 1614.107(a)(5), for raising a proposed action.
The Agency, according to its decision, obtained an affidavit from Complainant stating that that claim (3) began in March 2011, not 2012. The Agency, therefore, also dismissed claim (3) for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency indicated that if the events occurred in March 2011, then Complainant's contact in January 2012 was well beyond the 45 day time limit. This appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we note that in his complaint, Complainant alleged a series of events which allegedly occurred from May 2011 through March 2012. Specifically, Complainant alleged that he was subjected to discrimination when: (1) the Agency initiated action to remove him from his position,and (2) he was not provided with work assignments. With respect to the issue of his work assignments, Complainant noted that he was forced to use leave and was told to sit in the swing room on display for his co-workers. The Agency took the assignment claim and separated it into different claims of discrimination, defined by time periods, instead of treating it as an ongoing claim of discrimination regarding his assignment. We find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Dep't of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of).
Therefore, we find that Complainant raised two claims of discrimination, namely (1) when the Agency initiated action on January 3, 2011 to remove him from his position, and (2) he was not provided work assignments from May 2011 through March 2012 and beyond. This decision shall review the Agency's dismissal using these redefined claims.
Removal Action - Claim (1)
The Agency dismissed claim (1) regarding the removal action pursuant to 29 C.F.R. � 1614.107(a)(5) . The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. We have reviewed the Agency's record and note that the Agency failed to provide a copy of the proposed action. Further, there is no indication as to what happened since the proposed action was issued. Without this basic evidence in the record, we find no support for the Agency's contention that the removal action was only a preliminary step to rather than an effectuated adverse personnel action. Thus, we conclude that the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). As such, we cannot find that that the dismissal of claim (1) was appropriate.
Work Assignments - Claim (2)
The Agency also dismissed Complainant's claim regarding his assignment of work, hereinafter referred to as claim (2), pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency believed that Complainant failed to contact the EEO Counselor in a timely manner.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
In its dismissal, the Agency stated that Complainant provided an affidavit indicating that the issue of assignments began in 2011, not 2012, as stated on the formal complaint. A review of the complaint file provided by the Agency failed to include any affidavit from Complainant. As such, we again find no support for the Agency's determination that the alleged discrimination occurred in March 2011. Therefore, we find that the Agency did not support its dismissal of claim (2).
Furthermore as to claim (2), Complainant alleged in his formal complaint that he was not provided with work assignments from January 7, 2012 through February 23, 2012, and again in March 1, 2012. Complainant also provided additional dates when he was not given work assignments which were provided as background evidence regarding claim (2). Therefore, we determine that the additional incidents where Complainant asserted he was denied work assignments from May 17, 2011 through September 15, 2011, should be considered in support of claim (2). See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Therefore, claim (2) alleges a claim of discrimination when, on various dates from May 2011 through March 2012, Complainant was not provided with work assignment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's decision and REMAND the complaint for further processing in accordance with 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 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
December 18, 2012
__________________
Date
2
0120122776
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122776