Andrew Tengeres, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2009
0120082595 (E.E.O.C. Mar. 18, 2009)

0120082595

03-18-2009

Andrew Tengeres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Andrew Tengeres,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120082595

Agency No. 4G-752-0189-08

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated April 14, 2008, dismissing his 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.

During the relevant period, complainant was employed as a Postmaster at

a Texas agency post office. On February 21, 2008, complainant initiated

EEO contact alleging that the agency discriminated against him on the

basis of reprisal for prior protected EEO activity when, on February 9,

2008, his immediate supervisor, the Manager of Post Office Operations

(MPO) issued him letters with instructions to report for a physical

and psychological "fitness for duty" exam on February 14 & 22, 2008,

respectively. (Complainant's allegations concerning the fitness-for-duty

exams will hereinafter be referred to as "claim (1)"). Subsequently,

on March 10, 2008, complainant initiated EEO contact alleging that,

again in retaliation for prior EEO activity, his performance ratings

were lowered by the MPO and complainant's second line supervisor, the

Dallas District Manager. Complainant further alleged that on February

29, 2008, the MPO denied his request for rating recourse to obtain a

higher rating. (Complainant's allegations concerning his performance

ratings will hereinafter be referred to as "claim (2)"). Complainant

stated that he wanted the ongoing retaliation to stop.

Shortly thereafter, in a notice received by the office of complainant's

legal representative on March 24, 2008, an EEO Counselor informed

complainant of the right to file a formal EEO complaint regarding claim

(1). In a formal complaint of the same date, complainant reiterated

the claim alleged in (1). Then, in a counselor's report dated April

4, 2008, the assigned EEO counselor listed both claims (1) and (2) as

complainant's claims, and noted that complainant was unavailable for

counseling due to extended absences and his legal representative did

not provide information for counseling.

In its April 14 final decision, the agency dismissed claim (1) pursuant to

29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,

the agency stated that complainant failed to allege a personal loss or

harm with respect to a term, condition or privilege of employment for

which there is a remedy. The agency noted that on February 21, 2008,

another manager issued a letter cancelling the two scheduled exams. As to

claim (2), in a footnote, the agency asserted that complainant abandoned

this claim because he did not include it in his formal complaint of

March 24.

The instant appeal from complainant followed. On appeal, complainant

stated that he alleged hostile work environment harassment based on

retaliation, and initiated EEO contact with each harassing incident.

He stated that the agency failed to consolidate the various incidents and

he does not know the status of the other issues. Further, complainant

stated that the agency did not inform him that claim (2) was consolidated

with claim (1), so he attempted to file a separate complaint regarding

claim (2) on May 7, 2008. The record is not clear what happened to this

complaint, if anything. Complainant asked this Commission to remand his

consolidated claim of retaliatory harassment to the agency for further

processing.

A fair reading of the record reveals that complainant has asserted a claim

of an ongoing pattern of harassment based on retaliation for his prior EEO

activity, of which the scheduling of the fitness-for-duty examinations and

the alleged lowering of his performance ratings are examples. On appeal,

complainant asserts that other examples of the ongoing retaliatory

harassment are currently being processed in the EEO complaints process,

including an order for another fitness-for-duty exam, improper disclosure

of his confidential medical information, and some pay and leave issues.

The anti-retaliation provisions of the employment discrimination statutes

seek to prevent an employer from interfering with an employee's efforts

to secure or advance enforcement of the statutes' basic guarantees, and

are not limited to actions affecting employment terms and conditions.

Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____,

126 S. Ct. 2405 (2006). To state a viable claim of retaliation,

complainant must allege that: 1) s/he was subjected to an action which

a reasonable employee would have found materially adverse, and 2) the

action could dissuade a reasonable employee from making or supporting

a charge of discrimination. Id. While trivial harms would not satisfy

the initial prong of this inquiry, the significance of the act of alleged

retaliation will often depend upon the particular circumstances. See also

EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment

that is based upon a retaliatory motive and is reasonably likely to deter

the charging party or others from engaging in protected activity states

a claim).

Under the facts as alleged by complainant in this case, we find that he

has alleged a viable claim of ongoing retaliation that requires further

processing. This claim includes the order to undergo both physical and

psychological fitness-for-duty examinations, as well as the alleged

lowering of his performance ratings.1 To the extent possible, these

allegations should be consolidated for processing with complainant's

other allegations of retaliatory harassment that he asserts are still

pending in the EEO complaints process. Through this consolidation,

the factual allegations should be considered in support of complainant's

unifying claim of a pattern of ongoing retaliatory harassment.

ORDER

The agency is ordered to process complainant's claim of ongoing

retaliatory harassment (to include the orders for physical and

psychological fitness-for-duty examinations, the alleged lowering of his

performance ratings and any other related factual allegations including

those currently being processed separately) in accordance with 29 C.F.R. �

1614.108 et seq. If the other factual allegations related to the ongoing

harassment claim have already been investigated and are currently in

the hearing process, the agency shall promptly inform the AJ of this

decision and allow the AJ to decide how best to proceed with completing

the investigation of fitness-for-duty and performance rating allegations.

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. Unless instructed otherwise by an EEOC AJ,

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 (K1208)

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 (M1208)

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), 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 (R0408)

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 (Z1008)

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

March 18, 2009

__________________

Date

1 Complainant stated that he filed a separate complaint on the performance

ratings because the agency did not properly inform him that claim (2)

should be filed formally with claim (1). We agree with complainant that

the consolidation of (1) and (2) was not indicated in the agency's March

24 notice of right to file.

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0120082595

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082595