0120091200
06-25-2009
Edwin C. Alvarado, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edwin C. Alvarado,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091200
Agency No. 4H-327-0009-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 19, 2008, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of national origin (Hispanic, Puerto Rican)1,
disability (depression), and reprisal for prior protected EEO activity
when:
1. on April 30, 2008, he received a Letter of Warning;
2. on November 26, 2008, a coworker attempted to provoke him with
confidential information from a prior EEO complaint; and
3. management provided a witness at the REDRESS mediation.
FINAL AGENCY DECISION
The agency dismissed claim 1 for stating the same claim as one that has
been resolved by settlement agreement. In addition, the agency noted that
complainant's contact for Claim 1 was untimely. Claim 2 was dismissed for
failure to state a claim finding that complainant had not shown he was
"aggrieved" or that the events were severe or pervasive enough to state
a claim of harassment. Finally, as to Claim 3, the agency determined
that this claim is asserting dissatisfaction with the processing of his
previously filed complaint. Therefore, Claim 3 was dismissed pursuant
to 29 C.F.R. � 1614.107(a)(8).
APPEAL
Complainant appealed asserting that it did not occur to him that he
was subjected to discrimination until he was informed by his colleagues
that his supervisor sought to make an all-female workplace. Therefore,
he argued that he raised the matter with the EEO Counselor in a timely
manner based on when he became aware of the supervisor's discriminatory
intent. Further, he asserted that the matter settled and Claim (1) were
not the same because he has new evidence regarding the letter of warning.
Finally, complainant indicated that he has been subjected to harassment
by his supervisor in retaliation for his protected activity in order to
get him to leave his office.
The agency requests that the Commission uphold its dismissal.
ANALYSIS AND FINDINGS
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
The record indicates that complainant filed a prior EEO complaint,
No. 4H-327-0092-08, in which he asserted he was subjected to retaliation
when he was issued a letter of warning on April 30, 2008. The record also
shows that matter was resolved by settlement agreement on June 17, 2008.
Although complainant asserted that the issues were different, in fact, the
complaints involve the same letter of warning. Complainant's assertion
that the issues were different was solely based on his claim that he
had new evidence regarding the letter of warning. New evidence does not
render the matters different. As such, we find that the agency properly
dismissed Claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim (2)
In his formal complaint, complainant asserted that on November 26, 2008,
a coworker walked past him and said that she was not going to smoke but
was doing her job. Complainant stated that he was surprised by her
statement because he had not said anything to her. Then he said he
realized that she was trying to provoke him because he had discussed
the coworker taking smoking breaks whenever she pleased in a prior
EEO complaint. Complainant asserted that he believes that someone in
management shared his confidential EEO statement in the prior complaint
with the coworker. On appeal, complainant asserts that he was subjected
to other harassing incidents because of his prior EEO activity, but he
did not provide any detail about these incidents.
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). To the extent complainant asserted that the supervisor
attempted to provoke him, we find that complainant has not shown that
the event was severe or pervasive enough to state a claim of national
origin and/or disability based harassment.
The Commission, however, has a policy of considering reprisal claims with
a broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. In the
instant matter, complainant asserts that management must have shared
confidential information about a prior EEO complaint with a coworker
that he had named as a comparator being treated more favorably and that
she made negative comments to him as a result. As such, we conclude
that Claim (2) with respect to retaliatory harassment states a claim as
complainant is, in essence, asserting that management was trying to turn
his coworker against him because of his prior EEO complaint in order to
deter him from engaging in future EEO activity. Therefore, we reverse
the agency's final agency decision dismissing this claim.
Claim (3)
In Claim (3), complainant alleged that he was subjected to discrimination
when management produced a witness during REDRESS. Complainant has
raised a claim regarding his dissatisfaction with the processing of a
prior EEO complaint. Upon review, we find that the complaint is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(8).2
CONCLUSION
Upon review of the record, we reverse the dismissal of Claim (2) on
the basis of retaliatory harassment and remand this claim for further
processing as ordered below. The Commission also finds that the agency
properly dismissed Claims (1) and (3) in whole and Claim (2) with respect
to the bases of national origin and disability.
ORDER (E0408)
The agency is ordered to process the remanded claim (Claim 2 -
retaliation) 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 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 (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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
June 25, 2009
__________________
Date
1 Although complainant also alleged discrimination on the basis of race
(Hispanic), the Commission notes that it considers the term "Hispanic"
to be a national origin rather than a racial group.
2 However, the Commission notes that upon review of the record we find
that complainant has alleged that the settlement agreement should be
made void asserting that the agreement was made under false pretences.
The agency has not addressed this issue. Therefore, we remind the agency
that it should review complainant's claim regarding settlement agreement
pursuant to 29 C.F.R. � 1614.504(b).
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0120091200
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091200