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

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2021002314 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wesley P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002314 Agency No. 4E-890-0034-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 8, 2021, dismissing 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier, Q- 01, at the Agency’s Red Rock Vista Station facility in Las Vegas, Nevada. On July 17, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, and reprisal for prior protected EEO activity when, on January 25, 2020, and other dates not specified, management accused Complainant of abusing sick leave, followed him around the station, spoke to him aggressively and gave him dirty looks. Complainant filed an appeal on July 17, 2020, before the Agency issued its August 10, 2020 final decision dismissing the complaint the claim for failure to state a claim. In his appeal, Complainant said that the matter had been settled on April 15, 2020, and he included a copy of a settlement agreement, as well as a June 30, 2020 letter of determination from an Agency EEO 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. 2021002314 2 Compliance Specialist who determined that the settlement agreement had not been breached. In addition, Complainant submitted a document regarding consolidation of the instant complaint (4E-890-0034-20) with another complaint identified as Agency No. 4E-890-0071-20. On December 20, 2020, we issued an appellate decision finding the record was unclear regarding whether Complainant was appealing the Compliance Specialist’s finding of no breach of the settlement agreement, or whether he was appealing the August 10, 2020 Agency dismissal for failure to state a claim. Complainant v. USPS, Appeal No. 2020005003 (December 17, 2020). We therefore remanded the matter to the Agency and ordered the Agency to do the following: Within forty-five (45) calendar days of the date this decision is issued, the Agency shall conduct an inquiry into the confusion in this matter and shall issue a final decision clarifying the posture of this complaint (4E-890-0034-20) as either the subject of a settlement agreement (which Complainant has alleged was breached) or a formal complaint dismissed pursuant to the provisions of 29 C.F.R. §1614.107(a). The Agency's final decision shall also either adjudicate the breach claim (if it determines the informal complaint was settled) or reissue its procedural dismissal of the July 17, 2020 formal complaint, depending on what it determines about that complaint. The Agency's final decision shall contain appeal rights to this Commission. If the Agency determines there is a valid settlement agreement in this case, which Complainant alleges was breached, the Agency shall process the matter in accordance with 29 C.F.R. §1614.504, including soliciting from Complainant a written statement explaining the alleged breach. The Agency shall then conduct an inquiry into the breach claim, including the gathering of appropriate sworn statements and documentary evidence, necessary to issue a reasoned decision on the breach claim. If the Agency finds that no valid settlement agreement exists, or finds the agreement breached, the Agency shall either reissue its dismissal decision or immediately resume the continued processing the formal complaint. The Agency shall also address the relevance of Agency Case No. 4E-890-0071-20, and whether any consolidation occurred with the instant complaint. The Agency subsequently issued a second decision on February 8, 2021, again dismissing the complaint for the same reasons as before, but on this occasion explaining that: Complainant’s first EEO contact was made on January 28, 2020 and he was assigned case number 4E-890-0034-20 (Complaint 1). Case number 4E-890- 0034-20 was originally settled in April 2020, however, complainant made EEO contact on May 26, 2020 alleging new issues in addition to alleging the April 2020 settlement agreement had been breached. Consequently, on June 30, 2020, the settlement agreement was voided for lack of consideration and processing of 2021002314 3 the informal complaint resumed which meant a Notice of Right to File a Formal Complaint on the previously settled allegations was issued. On July 2, 2020, the ADR specialist issued complainant a letter of acknowledgement/consolidation, however the letter was referring to complainant’s EEO contacts dated May 26, 2020 and June 19, 2020; not the original January 28, 2020 EEO contact which was being processed separately and was not consolidated under the new case number. NEEOISO received the complainant’s formal complaint filing for 4E- 890-0034-20 and made its decision to dismiss the allegations in 4E-890-0034-20 based upon the record presented at the time. The new allegations raised in 4E- 890-0071-20 (Complaint 2) were still being counseled at the informal stage and the analyst did not have knowledge of the new allegations and therefore could not consider the new allegations in the August 10, 2020 decision. The instant appeal followed from this second Agency final decision. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, disabling condition, genetic condition, or reprisal. 29 C.F.R. §§ 1614.103, 106(a). In its dismissal, the Agency analyzed Complainant’s harassment claim under the standards applicable to harassment claims based on race, color, religion, sex, national origin, age, disabling condition, or genetic condition, instead of the standard applicable for reprisal. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8- 13, 8-14 (May 20, 1998). The Commission has held that a supervisor who has a potentially chilling effect on employees seeking equal employment opportunity has committed a violation. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den. EEOC Appeal No. 0520090654 (Dec. 16, 2010). Title VII prohibits words or actions that have a chilling effect of deterring the complainant or a reasonable employee from protected activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). In a retaliatory harassment claim, a complainant must show that a reasonable person would have found the challenged action materially adverse, i.e., an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination in the future. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Following a review of the record we find that Complainant states a valid claim of retaliatory harassment because a supervisor challenging an employee’s use of sick leave, accusing him of abusing sick leave, and following him around the workplace, are the types of actions that could dissuade a reasonable worker from engaging in the EEO process. 2021002314 4 Pursuant to 29 C.F.R. § 1614.606 the Agency is required to consolidate “two or more complaints of discrimination filed by the same complainant.” While the Agency explains that the analyst processing the matter did not have knowledge of the new allegations, at this point in the proceedings the Agency is presumably aware of all pending allegations. By failing to include the matters raised in the instant complaint alongside Complainant’s other harassment claims, the Agency was able to fracture the claim and analyze it in a piecemeal fashion rather than considering the matters together in a single harassment claim. We therefore find that a remand is required to consolidate this claim with Complainant’s other claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final order and REMAND the claim for further processing in according with this decision and the Order below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §§ 1614.108 and consolidate this complaint with Agency No. 4E-890-0071-20. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2021002314 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021002314 6 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) 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 (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. 2021002314 7 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 July 7, 2021 Date