0120122503
11-08-2012
David P. McRae, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
David P. McRae,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120122503
Agency No. 1K-281-0014-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 23, 2012, dismissing his complaint of unlawful employment discrimination, alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Custodian at the Agency's Charlotte Processing and Distribution Center facility in Charlotte, North Carolina.
On March 19, 2012,1 Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (Non-White), sex (male), and disability when:
1. from November 1, 2011 and continuing, his supervisor contested Complainant's absences, required him to resubmit medical documentation of his condition;
2. on an ongoing basis from December, 2011, Complainant's supervisor singled him out for harsher treatment, did not allow Complainant to take breaks or to perform his duties in the same environment the supervisor allowed others who were not of Complainant's race or sex) (with similar medical restrictions) to work; and
3. on January 9, 2012 his supervisor sent Complainant home because of his medical restrictions.
Complainant is a disabled veteran; and the Agency is aware of Complainant's medical history. Complainant had been on Family and Medical Leave Act (FMLA) leave. He has been treated for chronic knee pain and sciatic nerve pain degenerative disk problems in his back. On December 7, 2011, Complainant provided the Agency with a notice from his physician that informed the Agency that Complainant was being treated for pain for his right knee. The notice also requested that Complainant be allowed breaks from his regular duties because his medical condition and the resulting "flare ups" caused him severe pain, if he did not take periodic breaks. On January 9, 2012, his supervisor sent Complainant home because of the restrictions that were noted on his doctor's note.
On January 13, 2012, Complainant contacted the EEO Counselor. Complainant named three white employees, who he said were not harassed on a daily basis, as was Complainant, including another disabled veteran who is on medication, like Complainant. Complainant also compared his harsher treatment to that given to a "white female, Middle-Aged" employee.
According to the EEO Counselor's report, Complainant identified several incidences between November 1, 2011 through January of 2012, when he was harassed about his absences, threatened with disciplinary action, and not allowed to work within the medical restrictions. Moreover, the EEO Counselor's report documents that Complainant alleged a pattern of ongoing disability-related harassment.
The record in this case also includes a Notice of Right to File (NRTF), dated March 15, 2012. That NRTF references the subject complaint number (Agency Number 1K-281-0014-12), but the NTRF also references incidents that occurred on March 14, 2012, which was after the date of the initial EEO contact.
On April 23, 2012, the Agency issued a final decision dismissing the complaint for a failure to state a claim. In its dismissal, the Agency identified three isolated instances, rather than Complainant's actual allegation that, starting in December 2011, the Supervisor allowed others with restrictions that are not of Complainant's race or sex to work without being subjected to any daily harassment or interference, but his supervisor interfered with his ability to perform his job in a peaceful work environment. The Agency framed the alleged issues as pertaining to questions regarding Complainant's FMLA protections and the decision referred to Complainant's "issues 1-8" without delineating those allegations.
In its dismissal, the Agency reasoned that the actions complained of, if true, are neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment. The Agency also reasoned that there is "no evidence in the record that Complainant suffered any measurable harm" because he was not subjected to any discipline or loss of pay.
As an alternative, the Agency concluded that Complainant's "allegation and its remedy is outside the scope of Title VII and EEO law" because Complaint was lodging a collateral attack on the proceedings of another forum, specifically the Department of Labor.
The instant appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee of 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 or genetic information. Complaints alleging retaliation are considered to be complaints of discrimination. 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to pursuant to 29 C.F.R. � 1614.107(a)(1).
Here, Complainant alleges that the Agency's failure to allow him the benefit of taking breaks, (which we construe as a request for reasonable accommodation) was due to factors such as Complainant's race and sex and caused him pain. Additionally, he alleges that his supervisor challenged his leave, required additional documentation that was a matter of record, and monitored Complainant more closely than similarly situated employees who were white or female. By asserting the Agency did not provide him with a discrimination-free environment, failed to provide him with a requested reasonable accommodation by not allowing him break times, and harassed him after he submitted his accommodation request, Complainant has stated a viable claim. Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore, we find that the complaint states a claim under both Title VII and the Rehabilitation Act for disability and race-related discrimination and harassment.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint; and we REMAND the matter 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.
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 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 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
November 8, 2012
__________________
Date
1 The record shows that Complainant filed the above-referenced complaint number 1K-281-0014-12 on or around March 19, 2012 and not on November 24, 2010, as referenced in the Agency's Dismissal.
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0120122503
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122503