Complainant,

v. 

Megan J. Brennan,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.

Appeal No. 0120151261

Agency No. 4B-105-0028-14

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 16, 2015, 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.,  the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq.
 
BACKGROUND

During the period at issue, Complainant worked as a Sales and Service Distribution Associate at the Agency's facility in Hunter, New York.  

On September 12, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. 

On December 26, 2014, Complainant filed the instant formal complaint.  Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of disability, age, and in reprisal for prior protected EEO activity when:


1. in July 2007, Complainant was  not paid within the correct pay weeks for hours worked;

2. in March 2011, Complainant was put out of work for 2-3 weeks, until transferred to another facility;

3. on unspecified dates, Complainant states that since working at the Hunters Post Office in 2011, her supervisor has harassed her, yelled at her, and bad-mouthed her to customers and coworkers;

4. between the Fall of 2010 and October 2013, Complainant's hours were cut;

5. in November 2013, Complainant requested assistance and was denied;

6. in December 2013, Complainant's leave time was entered as Annual Leave instead of Family and Medical Leave Act; 

7. in March of 2014, Complainant was  charged Absent Without Leave (AWOL) instead of FMLA;

8. in April of 2014, Complainant was placed on the deems desirable list;

9. on August 19, 2014, Complainant was asked why she could not handle a two person office on her own for three weeks; and, 

10. from August 20, 2014 through November 3, 2014, Complainant's leave time was entered as Annual Leave and not FMLA.

During the processing of the instant matter, Complainant stated that the alleged discriminatory actions began when she transferred to the Hunter, New York Post Office in 2011. Complainant stated that she was subjected to harassment from her Postmaster; harassed about her sick usage; charged with being Absent Without Leave (AWOL); made to work alone in a two- person office, and then questioned why she could not handle the office on her own. Complainant also stated that she had been going to physical therapy, and that the Agency was ignoring her physical therapy schedule when scheduling her for work hours. Complainant requested for the harassment to cease; to be able to work with a different Postmaster; ability to obtain hours she is entitled to in the office; be taken off the deems desirable list; time off for physical therapy and medical appointments as needed; and, to have the AWOL charge removed, and to have a April 2014 disciplinary action expunged. 

On January 16, 2015, the Agency issued a final decision.  The Agency dismissed claims 1 through 8 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that the various incidents of alleged discrimination occurred over a large span of time between 2007 and 2014. The Agency stated that the claims presented failed to address a series of ongoing and related incidents. The Agency noted that the appropriate posters regarding timely EEO counselor contact were posted at Complainant's facility. 

The Agency dismissed claim 9 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant had not demonstrated that she was aggrieved. The Agency stated that Complainant did not identify a causal connection between an alleged Agency action and an injury suffered. The Agency stated that Complainant had not demonstrated that she had suffered a work related incident that affected a term, condition, or privilege of employment.  

Furthermore, the Agency stated that claims 6, 7, and 10 addressed FMLA issues and were outside the scope of Title VII.   The Agency therefore also dismissed claims 6, 7, and 10 for failure to state a claim, finding that the matter raised therein constituted a collateral attack on the proceedings of another forum, specifically the Department of Labor. 

On appeal, Complainant contends that management made several false statements. Complainant also contends that at the time of the events, her father was critically ill and lived a five hour drive from her, leaving her with very little time to do anything else but to care for him. Complainant contends that management's treatment of her and the violations of her FMLA rights have caused great havoc in her personal life.  

ANALYSIS AND FINDINGS


Claims 6, 7, 9, and 10 (failure to state a claim)

The Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claim 6, 7, 9, and 10 for failure to state a claim. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment.  

Regarding claim 9, Complainant's assertion that her manager asked her why she could not run a two-person office in August 2014, is properly viewed in the context of her broader assertion that  was compelled to work in a two-person office, among numerous other incidents of alleged harassment.   Regarding claims 6, 7, and 10, to the extent that these matters can be construed as alleging improper compliance with the FMLA, such matters indeed would not be covered by the Commission's regulations.  However, to the extent that the matters can be construed as not properly being paid leave, regardless of whether it came under the FMLA or not, she has stated a claim.  See Complainant v. USPS, EEOC Appeal No. 0120121038 (May 9, 2012).

In sum, 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).  


Claims 1 - 8 (untimely EEO Counselor contact) 

The Agency improperly dismissed claims 1 - 8 on the grounds of untimely EEO Counselor contact.  The record reflects that Complainant initiated EEO Counselor contact on September 12, 2014.  The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period.  This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence."  EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

The record reflects that various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's September 12, 2014 EEO Counselor contact, as discussed above.  Because a fair reading of the record reflects that the matter identified in claims 1- 8 is part of that harassment claim, we find that the Agency improperly dismissed these claims on the grounds of untimely EEO Counselor contact.




Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claim (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 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 (S0610)

You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.  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. If you file a request to reconsider and also file a civil action, 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

July 23, 2015
__________________
Date

2
0120151261





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




2
0120151261