0120092574
06-18-2010
William E. Avera, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
William E. Avera, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092574
Agency No. 4H320004909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 24, 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., 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.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint for failure
to state a claim.
BACKGROUND
The record shows that at the time of the alleged discriminatory action,
Complainant was employed as a City Carrier at the agency's Orange Park,
Florida, Post Office.
Complainant filed the instant complaint on April 14, 2009, in which
he alleged that he was subjected to discrimination on the bases of
disability, age (53) and in reprisal for protected EEO activity when:
1. On January 5, 2008, the Post Office Manager (S2) made an attempt to
get him to withdraw his EEO complaint; and
2. On December 31, 2007, his supervisor (S1) made an attempt to get him
to withdraw his EEO complaint.
FINAL AGENCY DECISION
In its Final Agency Decision (FAD), the agency determined that
Complainant's claim described common workplace occurrences, which did
not affect the conditions of his employment. The Agency determined that
Complainant had not demonstrated that he was an "aggrieved" employee
within the meaning of 29 C.F.R. � 1614.103. On these grounds, the Agency
dismissed Complainant's complaint for failure to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates that the Office Manager (S2) harassed
him on the basis of his disability and attempted to dissuade him from
filing an EEO complaint. Complainant avers that the agency improperly
found that he failed to allege that he suffered a present harm or
loss with respect to a term, condition or privilege of employment.
Complainant reiterates that management attempted to dissuade him
from filing an EEO complaint on two occasions: December 31, 2007, and
January 5, 2008. Complainant also contends that the Agency sent him a
letter on November 27, 2007, requesting that he provide updated medical
documentation. Further, Complainant avers that S2 discriminated against
him when he changed his mail route, which necessitated work involving
reaching above his shoulder. Complainant also reiterates on appeal that
the Agency improperly failed to address claim (2).
On appeal, the Agency reiterates that Complainant failed to show that he
is an "aggrieved" employee within the meaning of 29 C.F.R. � 1614.103. The
Agency avers that Complainant failed to show that he was subjected to a
hostile work environment or to actions in reprisal for prior EEO activity.
On these grounds, the Agency requests that the Commission affirm its
final decision.
ANALYSIS AND FINDINGS
Initially, the Commission notes that Complainant cannot raise new
contentions on appeal that have not been previously investigated.
See Hubbard v. Department of Homeland Security, EEOC Appeal No. 01A40449
(April 22, 2004). Accordingly, we will not address Complainant's claim
that S1 assigned him to a route that required that he reach above his
shoulder.
We also note that as a general rule, no new evidence will be considered
on appeal unless there is an affirmative showing that the evidence was
not reasonably available prior to or during the investigation. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Ch. 9 � VI. A.3. (Nov. 9, 1999). In this case, complainant
seeks to introduce several exhibits into evidence for the first time. On
appeal, complainant provides no justification for introducing new evidence
and arguments, and he fails to provide a reason as to why it was not
possible to introduce this evidence at an earlier time. Accordingly,
this evidence will not be addressed.
Finally, with regard to Complainant's claim concerning the November 27,
2007, letter requesting updated medical documentation, we note that
Complainant failed to raise this matter in his formal complaint dated
April 14, 2009. Instead, the record indicates that he raised this
claim in an earlier complaint, Agency No. 4H-320-0013-08, which was
subsumed into the class claim of McConnell et al v. USPS, EEOC Case
No. 520-2008-00053X. On these grounds, we find that this claim is not
properly before the Commission. Accordingly, we will not address this
matter.
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 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).
Claims 1 and 2 - 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. 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.
Upon review of the record, we find that claim (1) states a claim of
discrimination. We find that Complainant's allegation of discrimination
is based on reprisal. The anti-retaliation provisions of the employment
discrimination statutes seek to prevent an employer from interfering
with an employee's efforts to secure or advance enforcement of the
statutes' basic guarantees, and are not limited to actions affecting
employment terms and conditions. Burlington Northern & Santa Fe
Railroad. Co. v. White, 548 U.S. 53 (2006). In his complaint,
complainant averred that on January 5, 2008, S1 and S2 called him into
an office, whereupon S2 attempted to convince him, over the span of
approximately 35 minutes, to withdraw his EEO complaint. Complainant
averred that S2 informed him that he was "putting up a stone wall they
could not get through." Complainant also averred that S2 stated that "he
[Complainant] needed to be a man and do the right thing [...]." Further,
Complainant averred that S2 stated that Complainant "needed to take
care of him [S2] and S1." We find that claim (1) alleges actions which
would be reasonably likely to deter protected activity. Accordingly,
we REVERSE the agency's dismissal of claim (1).
With respect to claim (2), we note that the Agency failed to address
this matter in its final decision. The Commission has held that an
agency's failure to address allegations is tantamount to a dismissal.
See Kapp v. Department of Navy, EEOC Request No. 05940662 (January
23, 1995). In his complaint, Complainant asserted that on December
31, 2007, S1 instructed him to meet in his office to discuss his EEO
complaint. Record of Investigation at 45. Complainant also averred that
upon entering the office, S1 stated that he wanted to resolve the EEO
complaint at the station level. Complainant further testified that S2
proceeded to enter the office, and both he and S1 stated that they had
"authorization from the EEO Office to resolve this among us three only."
Finally, Complainant testified that S1 and S2 informed him that he had
two choices: "[he] could agree to resolve it [the EEO complaint] or not."
We find that claim (2) alleges actions which would be reasonably likely to
deter protected activity. Accordingly, we REVERSE the agency's dismissal
of claim (2).1
CONCLUSION
After a careful review of the record and contentions on appeal,
including those not specifically addressed herein, the Commission finds
that Complainant has stated a claim of discrimination. Accordingly,
we REVERSE and REMAND the agency's dismissal of claims (1) and (2)
in accordance with the order below.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 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 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 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
____6/18/10______________
Date
1We also find that Complainant is an "aggrieved employee" based on age
because he has suffered a harm or loss with respect to a term, condition,
or privilege of his employment when management attempted to dissuade
him from pursing protected EEO activity.
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0120092574
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092574