U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur F,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120172162 Agency No. 1E-801-0011-17 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 1, 2017, dismissing a formal 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., 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 Tractor Trailer Operator at the Agency's Processing and Distribution Center in Denver, Colorado. On April 4, 2017, Complainant filed a formal complaint. On May 1, 2017, the Agency issued a final decision. The Agency characterized the formal complaint as being comprised of the following matter, based on disability and age: Throughout December 2016, there were comments made by coworkers to Complainant, asking him when he was going to retire and calling him a lunatic. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. On appeal, Complainant contends that the he raised a cognizable harassment claim, that the Agency failed to address all of the issues he raised throughout the complaint process, and that management effectively denied his request for official EEO time. ANALYSIS AND FINDINGS The formal complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant has shown an employment injury for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). A fair reading of Complainant's appeal, formal complaint and pre-complaint documents reflects that the matters which Complainant raised go beyond those two comments in December of 2016, identified by the Agency in its final decision. Specifically, Complainant asserted that there were "numerous incidents of harassment." The EEO Counselor noted at least two other incidents of possible harassment. For example, Complainant accused a dispatcher of maliciously misdirecting him when he was trying to locate a trailer that he had been assigned to transport. On another occasion, Complainant accused another driver of intentionally attempting to hit him with a truck. Additionally, in his formal complaint, Complainant stated that two dispatchers at the Denver Network Distribution Center (Denver NDC) knowingly provided him false trailer numbers. Moreover, these same dispatchers allegedly disrespected Complainant's disability by shouting loudly, moving their lips slowly and making dramatic gestures with their fingers. On appeal, Complainant elaborates that the Denver NDC dispatchers purposely ignored his efforts to communicate with them or pretended not to understand him. Furthermore, Complainant asserts that the harassment started as early as November 2016, continued every time that he drove the Agency vehicle to the Denver NDC and it was ongoing through at least late January of 2017. Consequently, we find Complainant has articulated a cognizable pattern of harassment claim under EEOC regulations. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). On appeal, Complainant raised the issue of official EEO time. EEOC Regulations require agencies to grant complainants "a reasonable amount of official time" to prepare an EEO complaint. See 29 C.F.R. § 1614.605(b). Without a finding of discrimination, this Commission has authority to remedy a violation of the official time regulation. See Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996); Edwards v. U.S. Postal Serv., EEOC Request NO. 05950708 (Oct. 31, 1996). Here, we note Complainant's assertion that some official time was provided, but not as much as he desired. We find that the Agency reasonably granted Complainant official time, albeit not as many hours as Complainant had requested. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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: Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations August 22, 2017 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 0120172162