U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bruce P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120152141 Agency No. 4E-970-0005-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 28, 2015, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Letter Carrier at the Agency's Albany Station in Albany, Oregon. On December 29, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On April 13, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of disability when: 1. on an unspecified date in January 2013, management did not respond to his request to a 204-B detail position; 2. on an unspecified date in January 2014, the Postmaster belittled him and subjected him to an investigative interview during which she denied his request for union representation; 3. on an unspecified date in July 2014, the Postmaster publicly belittled him on the workroom floor; 4. on or about September 21, 2014, his request for reasonable accommodation was not addressed; 5. on November 21, 2014, he was placed on emergency placement in off-duty status; and 6. on January 13, 2015, he received a Notice of Proposed Removal dated December 26, 2014, and subsequently, was issued a letter of decision which made the removal effective March 21, 2015.2 In its April 28, 2015 final decision, the Agency dismissed allegations 1 - 4 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on December 29, 2014, which the Agency determined was beyond the 45-day limitation period. The Agency also dismissed allegation 2 on the alternative grounds of failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the negotiated grievance process. The Agency stated that Complainant should have raised such matters through the negotiated grievance process, and not through the EEO complaint process. Further, the Agency dismissed allegations 5 and 6, pursuant to 29 C.F.R. § 1614.302(b), which provides that an aggrieved may file a mixed case complaint with an agency or an appeal on the same matter with the Merit Systems Protection Board (MSPB) pursuant to 5 C.F.R. § 1201.151, but not both. The Agency noted that on April 7, 2015, Complainant filed an appeal with the MSPB concerning his removal prior to filing the instant formal complaint on April 13, 2015. The instant appeal followed. Complainant, on appeal, states that he is subjected to ongoing harassment. Specifically, Complainant states "the harassment/and discrimination continue from my Postmaster since my return to duty on 5/9/15. I can only ask that your agency assist me in my attempt to eliminate this type of behavior at my place of employment." ANALYSIS AND FINDINGS As an initial matter, we find that a fair reading of the complaint in this case reveals that Complainant is alleging that he has been subjected to ongoing discriminatory harassment on the basis of his disability that culminated in the decision to place him off-duty and remove him from employment. The allegations in his complaint are proffered as examples of this pattern of harassment. Therefore, allegations 1-6 should not be viewed as separate claims, but factual allegations offered in support of this ongoing discriminatory harassment claim. As such, the Agency improperly dismissed portions of the complaint on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on December 29, 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)). In this case, the November 2014 placement of Complainant on emergency off-duty status occurred within the 45-day time period preceding Complainant's December 29, 2014 EEO Counselor contact. As this event was alleged as part of the ongoing harassment claim, the entire claim was timely raised and Complainant's remaining allegations, as well as other incidents he may raise during the investigation, should be considered as evidence as long as they are reasonably connected to this harassment/hostile work environment claim.3 This being said, while allegations 5 and 6 should be properly considered as evidence in support of Complainant's harassment/hostile work environment claim, they cannot also be considered as independent claims of discrimination on their own.4 In the instant case, there is no dispute that Complainant appealed these matters to the MSPB prior to filing his EEO complaint. Therefore, the Agency correctly dismissed these matters as independent claims pursuant to 29 C.F.R. § 1614.107(a)(4). Accordingly, we AFFIRM the Agency's final decision dismissing allegations 5 and 6 as independent claims for the reasons stated above. We REVERSE the Agency's final decision dismissing Complainant's harassment/hostile work environment 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 Complainant's harassment/hostile work environment claim 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 Complainants 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 December 18, 2015 __________________ 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. 2 It appears from the record that after the effective removal date in March 2015, Complainant was reinstated to employment. We note below that on appeal, Complainant makes explicit reference to his "return to duty" in May 2015. 3 Moreover, we note that allegation 4, in addition to being part of the harassment claim can also be reasonably construed as an allegation of a denial of reasonable accommodation. EEOC Compliance Manual, Section 2, "Threshold Issues," EEOC Notice 915.003, at 2-73 (July 21, 2005), provides that "because an employer has an ongoing obligation, to provide a reasonable accommodation, failure to provide such an accommodation constitutes a violation each time the employee needs it." See e.g., Peacock v. USPS, EEOC Appeal No. 0120082372 (July 31, 2008). 4 In other words, if discrimination were found, Complainant's remedies are limited to those he would be entitled to for prevailing on his harassment/hostile work environment claim. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152141 2 0120152141