01A04112
02-23-2001
John F. Reider, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John F. Reider v. U.S. Postal Service
01A04112
February 23, 2001
.
John F. Reider,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04112
Agency No. 4-F-920-0057-00
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 3, 2000, dismissing his complaint of unlawful
employment discrimination brought under 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.<1>
In his complaint, complainant claimed that the agency discriminated
against him on the bases of disability and reprisal when:
Express Mail procedures were improperly changed with the purpose
of setting complainant up for failure, subjecting him to unwarranted
progressive discipline, that would eventually result in the issuance of
a letter of warning; and,
Complainant's wife, who is employed at the same facility, was told by
a manager that her chances for promotion were diminished because of
complainant's disability.
The agency dismissed the complaint for failure to state a claim.
The agency determined that complainant was not harmed in a term
or condition of employment regarding the first claim, noting that no
Letter of Warning (LOW) had been issued. Regarding claim 2, the agency
found that complainant's wife, not complainant, had standing to bring
this claim.
On appeal, complainant argues that with regard to claim 1, the change
in the Express Mail procedures indeed resulted in incidents for which he
was disciplined for failure to follow instructions. Complainant further
argues that orchestrated progressive discipline resulted in the issuance
of a LOW, dated September 1, 1999. Regarding claim 2, complainant argues
that his wife had been approached by different management officials on
four occasions, each warning her that her chances for promotion were being
harmed by complainant engaging in the EEO process to address workplace
problems associated with his disability. Complainant contends that the
agency approached his wife in this manner in order to discourage him
from participating in the EEO process. Complainant asserts that the
actions in both claims create a hostile work environment.
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).
Regarding claim 1, complainant on appeal provides a detailed statement
describing the progressive discipline (for failure to follow instructions)
that he received as a consequence of the change in the Express Mail
procedures. He also submits a copy of the LOW he received for failure to
follow instructions. Therefore, we find that these disciplinary actions
render complainant aggrieved, within the meaning of the above cited legal
standard, such that we find that the agency improperly dismissed claim 1.
Accordingly, we REVERSE the agency dismissal of claim 1, and REMAND it
for processing as set forth in the ORDER below.
Regarding claim 2, we also find that the agency improperly dismissed
this claim. By affidavit, complainant's wife attests that she had
been contacted several times by agency officials, who informed her
that complainant's disability was affecting her chances for promotion.
Moreover, on appeal, complainant further indicates that a management
official directly warned him (i.e. �enlightening speech to me on 3/31/99")
in a similar vein. Complainant contends that he now feels pressured about
using the EEO process since it might result in management's refusal to
promote his wife. We find that the agency's conduct in these instances
could have a chilling effect on complainant's participation in the EEO
process, so that it states a claim of interference in the EEO process.
See George v. U.S. Postal Service, EEOC Request No. 05980451 (October 8,
1998). Moreover, the Commission notes that the EEO statutes prohibit
retaliation against someone so closely related to or associated with a
person, such as complainant, who exercises his statutory rights, that
it would discourage or prevent a person from pursuing those rights.
It would therefore be unlawful for an agency to retaliate against an
employee because his or her spouse, who is also an employee, pursued the
EEO complaint process. See e.g., Medina v. Reinhardt, 444 F. Supp. 573
(D.D.C. 1978). Retaliation against a close relative of an individual
who opposed discrimination can be challenged by both the individual who
engaged in protected activity and the relative, where both are employees.
See Rhinesmith v. Department of the Treasury, EEOC Appeal No. 01983350
(January 13, 2000). Accordingly, we find that the agency improperly
dismissed claim 2, and we REVERSE this dismissal and REMAND the claim
to the agency for action as set forth in the ORDER below.
ORDER (E0900)
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (R0900)
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 (Z1199)
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
February 23, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.