Postal Supervisor Claimed A Hostile Work Environment aggravated his medical condition and USPS failed to investigate.

The following facts are based upon the allegations in John Pell’s amended complaint filed in the United States District Court and information from the EEOC case.

Pell is a former employee of the USPS who worked at the Framingham, Massachusetts Post Office. In 2003, while employed as a supervisor at the USPS, Pell was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and a psychiatric condition called Transient Global Amnesia (“TGA”). After these initial diagnoses, he remained out of work until his doctors released him to return to work. Pell’s doctors allowed him to return to work in 2005 on the condition that the USPS provide “strict enforcement” of USPS regulations and policies in Pell’s work environment, specifically those regulations and policies that prohibited workplace threats, harassment, bullying, intimidation and that contain a “zero tolerance” policy for unacceptable levels of workplace stress. Pell claims that he sought such “strict enforcement” as a “reasonable accommodation” [under the Rehabilitation Act] of his condition to enable him to perform the essential duties of his job. From the time he returned to work at some point in 2005 until September 5, 2006, Pell alleges the USPS strictly enforced USPS regulations and policies in his work environment and as a result he was able to perform all of the essential functions of his job.

However, on September 5, 2006, Framingham Postmaster William Harris approached Pell at the beginning of his shift, accused Pell of sexual harassment, and told him he had three choices: (1) accept a demotion; (2) transfer out of the Framingham Post Office; or (3) “I’ll throw you out.” Pell alleges that Harris’ conduct towards him violated USPS regulations and policies against bullying, harassment, threats, and intimidation. As a result of Harris’ conduct towards him, Pell suffered a TGA episode, left the workplace and has not returned to work since that day. He has since retired from the USPS.

Pell was unhappy with the USPS’s handling of his complaint about the September 5, 2006 incident. Pell alleges that, in connection with a worker’s compensation claim he filed when he was out of work, Harris completed two forms related to the September 5, 2006 incident that were inconsistent and incomplete. Pell also claims that Harris failed to investigate the September 5, 2006 incident fully because he did not interview Pell or other witnesses. Pell further alleges that he requested that Harris be investigated for violating USPS policies and regulations in connection with the September 5, 2006 incident, but that USPS District Manager John Powers chose not to do so. In early 2008, Pell reported Harris’ violations of USPS policies and regulations to USPS Northeast Area Vice President Haney , but Haney refused to investigate Harris’ conduct and refused to refer the alleged violations to the Office of the Inspector General .

Pell sought EEO counseling on March 31, 2008 — nearly a year and a half after the alleged September 5, 2006 incident of discrimination. In contacting the EEO, Pell indicated that the date of the alleged discriminatory incident was March 4, 2008 — the date Pell became aware that Haney would not refer the alleged violations of USPS policies and regulations to OIG.

After receiving the EEO notice of right to file a formal complaint on June 23, 2008, Pell filed a complaint with the EEO on July 8, 2008. On July 28, 2008, the EEO dismissed Pell’s complaint for two reasons: (1) failure to state a claim because the Department of Labor is the proper forum to address the basis of Pell’s then pending worker’s compensation claim; and (2) untimely EEO counselor contact because Pell failed to contact an EEO counselor within 45 days of the September 5, 2006 incident.

Pell then timely appealed the dismissal of his EEO complaint to the EEOC Office of Federal Operations. The OFO upheld the Postal Service’s dismissal:

The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).

In this matter, we find that the instant complaint is a collateral attack on a proceeding before the Department of Labor, and the proper forum for complainant to raise any challenges regarding the agency’s
improper investigation of his injury is during that proceeding itself. The Commission agrees with the agency that complainant fails to state claim. See Hannon v. Treasury, Request No. 05A01149 (May 8, 2003).
After a review of the record, including statements and arguments not addressed herein, based on the reasons above, we find that the agency properly dismissed the complaint.

Reading the allegations in the Amended Complaint in the light most favorable to Pell, his claim is likewise barred by the Rehabilitation Act’s administrative exhaustion requirement. Pell alleges that Harris’ conduct on September 5, 2006 amounted to discrimination based on Pell’s psychiatric disability and caused Pell to suffer a recurrence of his TGA, forcing him to leave the workplace that very day. Like the plaintiff in Roman-Martinez who was required to contact the EEO counselor within 30 days of the alleged discriminatory actions, Pell was required to contact an EEO counselor within 45 days of the September 5, 2006 incident.2 It is uncontested that Pell failed to contact an EEO counselor within this required 45 day period and, therefore, his claim is barred for failure to exhaust his administrative remedies.

Pell does not argue that Haney’s March 4, 2008 denial of any further investigation of the September 5, 2006 incident constituted a new discriminatory action and thus became the triggering event for commencing EEO procedures nor would such argument be plausible on the basis of the facts alleged in the Amended Complaint. The Supreme Court has held, “the time for filing a charge of employment discrimination with the [EEOC] begins when the discriminatory act occurs . . . . A new violation does not occur, and a charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628 (2007) (superceded on other grounds by Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5). “[T]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become the most painful.”

Even read in the light most favorable to Pell, March 4, 2008 was the date on which he learned that the USPS would not further investigate or refer his claim that the September 5, 2006 incident was discriminatory. That is, the September 5, 2006 allegedly discriminatory act triggered Pell’s obligation to contact the EEO

Having ruled that this matter must be dismissed because of Pell’s failure to exhaust administrative remedies, the Court need not reach Defendants’ further argument that dismissal under Fed. R. Civ. P. 12(b)(6) is also warranted because he has failed to establish a prima facie case of employment discrimination based on a disability.

John Pell vs JOHN E. POTTER, POSTMASTER GENERAL and U.S. POSTAL SERVICE, March 1, 2011