U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristobal A,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120170871 Agency No. 1C-401-0043-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 19, 2016, 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. and 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 Mail Handler Equipment Operator for the Agency in Louisville, Kentucky. On August 12, 2016, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On November 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race disability, age, and in reprisal for prior protected activity. On December 19, 2016, the Agency issued the instant final decision. The Agency determined that the formal complaint was comprised of two claims, identified as follows: 1. On June 23, 2016, Complainant was issued a Letter of Warning in Lieu of Suspension; and 2. On August 3, 11, and 12, 2016, he was sent to work out of his section and management questioned him about his work performance. The Agency issued a final decision dismissing allegation 1 on the grounds of untimely EEO Counselor contact, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's contact of an EEO Counselor on August 12, 2016 regarding allegation 1 was beyond applicable time limitations. The Agency determined that allegation 2 failed to state a claim, and dismissed claim 2 in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant failed to demonstrate that he suffered any harm due to the Agency's alleged conduct identified in allegation 2. This appeal followed. ANALYSIS AND FINDINGS 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that she is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). A review of the report of the EEO Counselor along with Complainant's formal complaint discloses that Complainant has alleged that the Agency subjected him to a pattern of discriminatory harassment and hostile work environment that was not expressly confined to the two matters addressed above. According to the report of the EEO Counselor, Complainant alleged that "on numerous occasions he was harassed (emphasis added)" by Agency officials about his job performance. Complainant states in his formal complaint that Agency officials removed him from his section and he was unable to get his work done. In turn, Complainant contends, he was harassed by Agency officials for not getting his work done, and ultimately, he alleges, disciplined for his failure to perform as evidenced by the issuance of a Letter of Warning in Lieu of Suspension. With respect to the matters which the Agency has identified as allegations 1 and 2, instead of treating these events as incidents in a harassment claim, the Agency viewed them individually and dismissed them on separate dismissal grounds. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claim and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when allegations 1 and 2 are viewed in the context of Complainant's claim of harassment, they state a claim and the Agency's dismissal of those claims as untimely and for failure to state a claim was improper. Moreover, as some of the alleged matters identified by Complainant were viable claims that occurred within the 45-day limitation period preceding initial EEO contact (i.e., allegation 2), all matters that may have been outside of that limitation period are also construed as timely raised. Untimely EEO Counselor Contact: Allegation 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. However, as already noted, we find that allegation 1 is part of a unified claim of discriminatory harassment. 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). See also Brown v. Dept. of the Army, EEOC Request No 05970558 (Sept. 15, 2000) (the Commission determined that Complainant had demonstrated a continuing violation and that the agency had erroneously dismissed complainant's complaint in a piecemeal method under theories of untimeliness and failure to state a claim). CONCLUSION Based on a thorough review of the record, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below. ORDER (E1016) 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 was issued. 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 was issued, 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: March 24, 2017 ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations March 24, 2017 __________________ 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 0120170871 6 0120170871