[Redacted], Henry P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2022003650 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003650 Agency No. 4E913006622 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's May 24, 2022 dismissal of his complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, for the C-3 (Sierra Costal) District in Fresno, California. On May 5, 2022, Complainant filed a formal EEO complaint alleging discrimination, including harassment/a hostile work environment on the bases of disability (hearing impairment), age (56), and reprisal for prior protected EEO activity when, on March 7, 2022, he was given an Investigative Interview and during the interview he was asked about his disability and medical issues. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022003650 2 In his complaint, Complainant identified his supervisor, a Supervisor, Customer Service (“S1”) and a Manager, Customer Service (“S2”) as the responding management officials. At the time of the alleged discriminatory event, S2 was Acting Manager of Cedar Station. On appeal, Complainant clarifies that the March 7, 2022 investigative interview was the second of two investigative interviews for “unacceptable conduct” that “in part, target[ed] his hearing disability.” He also alleges that S2 exhibited a “continuous display of discrimination and disdain for disabled people” and provides several examples where she allegedly created a hostile work environment for him. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that they have 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If the complainant cannot establish that they are aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). 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. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” With respect to the claim of reprisal, 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. Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). 2022003650 3 Upon review, we find the investigative interview that took place on March 7, 2022, to be an isolated incident and, without more, insufficient to state a viable claim of discriminatory harassment. The Commission has held that, in most circumstances, merely conducting an internal investigation into purported misconduct does not, without more, cause injury sufficient to render the subject of the investigation aggrieved. See, e.g., Cassidy v. United States Postal Serv., EEOC Appeal No. 0120093879 (Jun. 30, 2011) (allegation of reprisal where the complainant was instructed to report for an investigative interview, which lasted 3 hours, while he was on approved sick leave, not sufficiently severe or pervasive to constitute harassment). Moreover, even applying the broad view of coverage afforded to reprisal claims, we find that, even assuming the March 7, 2022 Investigative Interview occurred as Complainant alleged, it was also not reasonably likely to deter Complainant from engaging in protected EEO activity. Complainant does not deny that the events discussed in the investigative interview occurred, and he has not identified any disciplinary or adverse action that resulted from the interview. We also note that during the investigative interview, Complainant was accompanied by a union representative. Moreover, the notes provided by Complainant reveal that S1 complied with Complainant’s request that she write down her questions as a reasonable accommodation for his hearing impairment. To the extent that Complainant’s disability was referenced during the investigative interview, Complainant concedes he verbally told S1 that he had a disability and his disability was obvious due to his hearing aids. Given the context, S1’s question about whether Complainant submitted medical documentation regarding his disability, without more, also did not constitute an actionable claim of harassment. See Cote v. United States Postal Serv., EEOC Appeal No. 01A24963 (Apr. 15, 2003) (investigative interview where the complainant was accused of missing an employee meeting and going to another facility without authorization, then asked to provide medical documentation to support his use of FMLA leave, not sufficiently severe or pervasive to state a claim of harassment). Additional Claims of Harassment While Complainant claims on appeal that he has been subjected to ongoing harassment, we expressly note that his formal EEO complaint raises only one allegation of discrimination, concerning the investigative interview held on March 7, 2022. If Complainant wishes to pursue his additional harassment allegations involving S2 in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2022003650 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022003650 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) 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. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 29, 2022 Date