Ted L.1 Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120140369 Agency No. 1E-642-0005-13 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's September 3, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Handler Equipment Operator at the Agency's Kansas City, Kansas Processing and Distribution Center. On March 4, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of disability, age (48), and in reprisal for prior EEO activity when: 1. on November 21, 2012, he was subjected to a Pre-Disciplinary Investigation for Failure to Be in Regular Attendance; and 2. on December 29, 2012, he was issued a Notice of Removal for Unacceptable Conduct based on an incident that occurred on November 21, 2012, that caused him to be placed on Emergency Placement. In a document entitled "Acceptance for Investigation," dated April 8, 2013, the Agency indicated that "claims" 1 and 2 were the matters that were accepted for investigation. The Agency indicated that if Complainant did not agree with the defined accepted issues, he was to provide a written response, specifying the nature of his disagreement, within seven calendar days of the date of receipt of the "Acceptance for Investigation." The record reflects that by letter dated April 28, 2013, Complainant, through his attorney, disagreed with the accepted issues defined in the Agency's April 8, 2013 acceptance letter. The attorney argued that the Agency misstated Complainant's claims and did not include the other claims and "accordingly, my client wishes to clarify that the claims of discrimination he is alleging" as follows: A. Whether the Agency discriminated against Complainant on the basis of his age [48], disability (PTSD, Depression and Anxiety) and retaliation (prior EEO activity) when: (1) On October 25, 2012, his request for reasonable accommodation was denied. (2) On January 22, 2013, he was removed from his position of employment. B. Whether the Complainant was subjected to ongoing and continuous harassment/ hostile work environment based on his age [48], disability (PTSD, Depression and Anxiety) and retaliation (prior EEO activity) when: 1. On October 25, 2012, his request for reasonable accommodation was denied. 2. on November 21, 2012, he was called off the workroom floor and given a job discussion; 3. on November 21, 2012, he was placed in Emergency Placement in off-duty status without pay; 4. on November 21, 2012, [Postal Inspector] called his mother in the middle of the night; 5. on November 23, 2012, [Postal Inspector] called his mother in the middle of the night; 6. on December 8, 2012, he was harassed and taunted during a pre-disciplinary interview; 7. on January 22, 2013, he was removed from his position of employment. In addition, the attorney requested that the harassment/hostile work environment claim also be amended to include Complainant's allegation that on November 26, 2012, the Manager refused to move out of his way, got in his face and screamed at him when he moved towards the door after being ordered to do so by a supervisor. Despite these clarifications, the Agency proceeded to investigation only the two claims it originally defined. After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On September 23, 2013, the Agency issued the instant final decision, finding no discrimination concerning claims 1 and 2. The Agency found that Complainant did not establish a prima facie case of disability, age and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on disability, age and retaliation. Moreover, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment. The instant appeal followed. On appeal, Complainant argues that the Agency did not address all the issues raised in his formal complaint as clarified in his attorney's April 18, 2013 letter to the Agency objecting to the framing of his complaint. Complainant further argues that the Agency "did not develop a complete and impartial factual record upon which to make any findings." In support of his assertions, Complainant submitted a copy of U.S. Postal Service Track & Confirm printout which indicated that his April 18, 2013 letter was processed on April 18, 2013, and delivered to the Agency's Tampa, Florida facility on April 23, 2013. In response, the Agency argues that there is nothing in the record indicating that it received Complainant's April 18, 2013 letter. The Agency notes, however, Complainant raised the issue of the denial of his October 25, 2012 request for reasonable accommodation. The Agency argues that Complainant's request for the use of a forklift would not be considered a reasonable request based on his disability. The Agency determined that Complainant's request was a personal preference and not directly related to his medical condition. The Agency further argues that this issue could also be considered moot as Complainant was removed from Agency employment, and ultimately did not initiate EEO contact until December 11, 2012. Furthermore, the Agency states that Complainant also raised a number of other matters during pre-complaint counseling, but did not include them in his formal complaint. Moreover, the Agency argues that Complainant had an opportunity to request a hearing in which he could have raised his other claims but he did not do so. ANALYSIS AND FINDINGS After careful review of the record, we find that the Agency failed to properly characterize Complainant's claims when it conduct its investigation of his complaint and issued its September 23, 2013 final decision. First, it is clear that the Agency's final decision does not address Complainant's denial of reasonable accommodation claim. While the Agency attempts to dispose of this claim with various arguments on appeal, we are not persuaded, without a proper investigation of this claim, that it can be adjudicated now on appeal. Second, in addressing Complainant's harassment/hostile work environment claim, the Agency improperly narrowed its examination to two incidents, while a fair reading of the complaint and related EEO counseling report, as well as Complainant's attorney's letter of April 18, 2013, discussed above, reveals that Complainant was raising at least eight incidents of alleged harassment, beginning with the October 2012 denial of reasonable accommodation and ending with his January 2013 removal. The Agency could not determine that Complainant failed to prove a discriminatory hostile work environment without investigating and considering the full range of incidents Complainant alleged made up his claim. Therefore, due to an inadequate investigation, we VACATE the Agency's finding of no discrimination. The complaint is REMANDED to the Agency for continued processing in accordance with the following Order set forth below. ORDER The Agency is ORDERED to take the following action: 1. Within ninety (90) calendar days of the date this decision becomes final, the Agency shall conduct and issue a supplemental investigatory report, in accordance with 29 C.F.R. § 1614.108, into the following claims of discrimination based on age, disability and/or retaliation for prior EEO activity: (1) denial of October 2012 request for reasonable accommodation; (2) removal effective January 2012; and (3) ongoing harassment/hostile work environment encompassing all eight events detailed in Complainant's attorney's letter of April 18, 2013. To the extent that the Agency's prior investigation examined parts of these claims, the Agency may incorporate that pre-existing evidence into its supplemental investigatory report. 2. The Agency shall issue the supplemental investigatory report with a new notice of right to request a hearing before an EEOC administrative judge or an immediate final decision pursuant to 29 C.F.R. § 1614.110. Documentation reflecting that the Agency has taken the action referenced above 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 (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 October 20, 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 0120140369 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120140369