0120091326
06-25-2009
Joseph K. Vallese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph K. Vallese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091326
Agency No. 4B028006608
DECISION
Complainant filed a timely appeal with this Commission from the final
agency's decision (FAD) dated January 2, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In his complaint, complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 19, 2008, the Postmaster told the APWU President that
complainant was "doing nothing,"
2. On July 1, 2008, Complainant was told that the Postmaster was going
to change his schedule because "it was pay back time" for serving as a
representative in another EEO complaint and the schedule was changed; and
3. On July 8, 2008, complainant was given a pre-disciplinary interview
(PDI) and subsequently on July 15, 2008 he was issued a Letter of
Warning (LOW) for irregular attendance which was reduced to an official
discussion.
Complainant alleged that after the Postmaster walked by complainant's work
area as he was picking up the settlement agreement and release for another
EEOC case, the Postmaster told the APWU President that complainant was
"doing nothing." Then, on July 1st, 2009, complainant's supervisor called
him and the APWU President into the office and informed complainant
that the Postmaster was going to change his hours and days off.
Complainant alleged that the APWU President later asked the Postmaster
why complainant's schedule was being changed and he responded by saying
that it was payback time for following through on another EEOC case.
The FAD dismissed the complaint for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that the complainant did not show he was
aggrieved, nor that his claim rose to actionable reprisal. It generally
referred to the record, which specified that the LOW was reduced to
an official discussion through the grievance settlement and that an
official discussion alone does not render that employee aggrieved. Thus,
the agency ruled that no claim was stated.
On appeal, complainant argues that while he was reviewing a proposed
settlement agreement in his presence, his Postmaster stated to the APWU
president, in a sarcastic and disparaging tone, that complainant was
"doing nothing." Complainant further claims that the Postmaster stated
that it was "payback time" and his schedule was then changed. Afterwards,
complainant received a PDI and a LOW for irregular attendance.
The Commission 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 this case, the FAD applied the incorrect legal standard. Instead of
the failure to state a claim standard, the applicable standard based on
these facts is the reasonably likely to deter standard. Regarding 1,
2, and 3, in applying this standard, we find that complainant describes
situations that are reasonably likely to deter protected activity.
Based on the allegation that the Postmaster directly told the complainant,
in a sarcastic and disparaging tone, that he was "doing nothing" when he
saw him working on another EEO case, allegedly said that it was "payback
time" for following through on an EEOC case, changed his schedule, and
issued him a PDI and a LOW for irregular attendance, it is reasonably
likely that these series of events, which occurred all within a month's
span of time, would deter protected EEO activity.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The complaint is hereby remanded to the agency
for further processing in accordance with this decision and the Order
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 (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 tends 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
June 25, 2009
__________________
Date
2
0120091326
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091326