Theodore W. Mort,
Complainant,

v. 

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Appeal No. 0120121286

Agency No. 66-000-0001-12

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated December 16, 2011, 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. 

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Postal Inspector at an Agency facility in Fresno, California.  

Complainant first contacted an Agency EEO Counselor on October 28, 2011.  When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint.  On December 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian) and color (white) when:


1. Management would not provide Complainant with his PFP appraisal.  
2. On September 16, 2011, Complainant was not allowed to return to work after being on sick leave although he had been cleared by his personal physician, and instead was placed on Administrative Leave pending the completion of an investigation into possible sick leave abuse.
3. In September 2011, while he was on Administrative Leave, Complainant was ordered to go for a fitness-for-duty exam which resulted in him being cleared for the full performance of his duties.
4. On October 13, 2011, after the matter with his sick leave had been resolved, he was again ordered to remain on Administrative Leave pending an investigation into allegations he had engaged in misconduct although he asserts that other similarly situated inspectors of a different race/color were not treated in the same manner.
5. On November 16, 2011, Complainant was interviewed by Agency OIG Agents in an effort to harass him.

The Agency dismissed claim (2) pursuant to 29 C.F.R. §1614.107(a)(2) for failure to raise the matter in a timely manner with an EEO Counselor.  The Agency noted that Complainant's contact was 52 days after he was placed on Administrative Leave.
  
The Agency also dismissed claims (1), (3), (4), and (5) pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim.  The Agency noted that in each event, Complainant failed to show that he was aggrieved by these events.  As to the appraisal in claim (1), the Agency found that Complainant has not asserted that this constituted an adverse employment.  As to claim (3), the Agency noted that a fitness-for-duty exam is a common workplace occurrence which is not offensive or abusive.  As to claim (4), the Agency asserted Complainant has not shown that he was subjected to any adverse employment action when he learned about other inspectors.  Finally, as to claim (5), the Agency indicated that an internal investigation does not subject Complainant to an adverse action.  As such, the Agency dismissed the complaint.

This appeal followed.  Complainant provided several documents to support his assertion that he has been abused and mistreated by the Agency.  Complainant also requested that the Agency conduct an investigation into his complaint.  The Agency asked that the Commission affirm its dismissal.

ANALYSIS AND FINDINGS

The Agency dismissed the entire complaint for failure to state a claim.  The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim.  An agency shall accept a complaint from any aggrieved employee or 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.  29 C.F.R. §§ 1614.103, .106(a).  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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Upon review, we find that, in issuing its dismissal decision, the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment, dismissing parts of his claim on various procedural grounds. A fair reading of pre-complaint documents and the formal complaint, as well as his submissions on appeal, reflects that Complainant's formal complaint is comprised of the claim that he has been subjected to ongoing discriminatory harassment, of which the separate "claims" identified and dismissed by the Agency are examples. All of the matters raised in the subject complaint, when viewed together, state an actionable claim of ongoing discriminatory harassment, which is a cognizable claim under the EEO regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 112, 1993).  See also, Price v. U.S. Postal Service, EEOC Appeal No. 0120083470 (December 18, 2008) (being required to undergo a fitness-for-duty examination concerns a term, condition, or privilege of employment).

With regard to the Agency's dismissal of claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact, we first note that it appears that the Agency has identified the incorrect date for this matter.  The Agency stated that Complainant was placed on administrative leave on September "6," 2011.  However, evidence of record in the form of copies of emails from management as well a letter from the Inspector In Charge establishes that Complainant was actually placed on Administrative Leave on September 16, 2011, and therefore, his October 28, 2011 initial EEO counselor contact was timely made.  Moreover, the Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002).  Such is clearly the case here.

Accordingly, for the reasons indicated above, the Agency's dismissal of the complaint is REVERSED and the complaint is REMANDED for further processing pursuant to the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded complaint (claim of ongoing harassment) 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 (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

May 17, 2012

__________________
Date

 

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




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0120121286