0120082463
08-01-2008
Fred Rico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Fred Rico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082463
Agency No. 4G780010808
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated March 31, 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.
Complainant filed the instant formal complaint on February 27, 2008.
Background
On November 12, 2000, complainant filed a prior EEO complaint against
the agency alleging that he was discriminated against on the basis
of disability when he was denied a City Letter Carrier position in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq. Petitioner appealed the agency's final decision
to the Commission. In Fred E. Rico, Jr. v. United States Postal Service,
EEOC Appeal No. 0720030096 (March 27, 2007), request to reconsider
denied, Request No. 0520070503 (May 23, 2007), the Commission reversed the
agency's finding of no discrimination and awarded complainant "make whole"
remedies for the agency's discriminatory actions, including the placement
of complainant into a Letter Carrier position, which he now holds.
On February 27, 2008, complainant filed a formal complaint alleging
retaliatory harassment in reprisal for prior protected EEO activity.
In addition to the allegations listed in the agency's FAD, complainant
also noted that, on an unknown date, S1 told him to come in to work at a
certain time but when complainant arrived, S1 denied telling complainant
to come in early but instead gave him a later time when the mail would
be ready. Additionally, complainant alleged that S1 yelled at him after
complainant asked about annual leave lists at the station.
In its March 31, 2008 FAD, the agency determined that complainant's
complaint alleged discrimination based on retaliation for prior EEO
activity when:
1. in September 2007, he learned that his supervisor (S1) made a comment
that he was going to throw complainant into the dog pit;
2. in October 2007, S1 forced complainant to walk across a four lane
highway to start his delivery;
3. on an unspecified date he was yelled at by S1;
4. on or about January/February 2008, S1 failed to process complainant's
on-the-job injury claim appropriately;
5. on or about January/February 2008, S1 called complainant's doctor's
office to inquire about his restrictions
6. on an unspecified date, after calling in sick for two days, complainant
reported for off-day overtime and he learned that the schedule had
been changed and that he was no longer scheduled for overtime on his
off day.
The agency dismissed claims 1-5 for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a). For claims 1-3, the agency found that
complainant failed to show he was aggrieved because complainant did
not suffer "a present harm or loss with respect to a term, condition or
privilege of employment for which there is a remedy." The agency viewed
claim 4 as a collateral attack on the OWCP process which, as a result,
failed to state a claim. The agency stated that complainant alleged
claim 5 violated the Privacy Act and found the claim outside the purview
of the Commission. Claim 6 was dismissed under 29 C.F.R. � 1614.106(c)
as insufficient because complainant failed to provide a date for the
incident.
Analysis and Findings
Initially, we note that the agency treated complainant's claim of
retaliatory harassment in a piecemeal fashion. In his complaint,
complainant alleged a series of events which allegedly occurred from
Spring 2007 through January/February 2008. Specifically, complainant
alleged that he was subjected to retaliatory harassment which created
a hostile work environment. Instead of treating these events as
incidents of the claim of harassment, however, the agency looked at them
individually. 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 claims and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of).
With retaliatory harassment, the Commission has stated that
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. See Burlington Northern and Santa Fe Railway Co. v. White,
548 U.S. 53, 126 S.Ct. 2405 (2006) (finding that the anti-retaliation
provision protects individuals from a retaliatory action that a reasonable
person would have found "materially adverse," which in the retaliation
context means that the action might have deterred a reasonable person
from opposing discrimination or participating in the EEOC charge process);
see also Lindsey v. United States Postal Serv., EEOC Request No. 05980410
(Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998)). Instead, the statutory retaliation clauses prohibit any adverse
treatment that is based upon a retaliatory motive and is reasonably likely
to deter complainant or others from engaging in protected activity. Id.
The allegations listed in complainant's complaint attempt to set out
a pattern of retaliatory harassment. When complainant's claims are
viewed in the retaliatory harassment context, they state a claim and
the Commission finds the agency's dismissal of those claims for failure
to state a claim improper. At the very least an investigation should
have been conducted to gather the relevant evidence needed to determine
whether a reasonable person, in a similar circumstance, would have been
deterred from engaging in protected activity. Accordingly, we REVERSE
the agency's final decision and REMAND the matter for further processing
as ordered below.
ORDER (E0408)
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 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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 (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 1, 2008______
Date
2
0120082463
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082463