01a60854
05-10-2006
Willie H. Spicer, II, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Willie H. Spicer, II v. United States Postal Service
01A60854
May 10, 2006
.
Willie H. Spicer, II,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60854
Agency No. 4K-220-0044-05
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his formal complaint claiming 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. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a City Carrier, at
the agency's Trade Center Post Office in Alexandria, Virginia. On March
9, 2005, complainant initiated EEO Counselor contact. Informal efforts
to resolve his concerns were unsuccessful.
On April 20, 2005, complainant filed a formal complaint. Therein,
complainant claimed that he was discriminated against in reprisal for
prior EEO activity when:
(1) on December 7, 2004, he received a Pre-Disciplinary Interview (PDI);
(2) on December 15, 2004, he received a Letter of Warning;
(3) on December 21, 2004, he received a PDI;
(4) on January 5, 2005, he received a PDI;
(5) on February 14, 2005, he received a PDI;
(6) on March 8, 2005, he received a PDI (regarding the untimely delivery
of Express Mail); and
(7) on March 11, 2005, he received a Letter of Warning (regarding the
untimely delivery of Express Mail).<1>
By letter dated April 28, 2005, complainant requested that his formal
EEO complaint be amended to include the following five claims:
(8) on April 26, 2005, he received a PDI;
(9) on January 4, 2005, a Supervisor repeatedly stated "I don't have
problem with the mail;"
(10) on January 12, 2004, management breached February 7, 2000 EEO
Settlement Agreement, Agency Case #4K-220-0038-00;
(11) on March 11, 2005, he received a PDI; and
(12) on April 26, 2005, he received a PDI.
On May 9, 2005, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Formal EEO Complaint." Therein, the
agency granted complainant's request that the formal complaint be amended,
by including claims (8) - (12).
The agency accepted claim (7) for investigation. The agency dismissed
claims (1) - (4) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds
of untimely EEO Counselor contact. The agency also dismissed claim (2)
on the alternative grounds of stating the same claim that is pending
before or that has been decided by the agency or Commission pursuant
to 29 C.F.R. � 1614.107(a)(1). The agency also dismissed claims (1),
(3) and (4) on the alternative grounds of failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1). The agency dismissed claims
(8) - (12) for failure to state a claim. Finally, the agency found
that the actions raised in claims (1), (3) - (6), (8), (9), (11) and
(12) did not rise to the level of a hostile work environment.
At the conclusion of the investigation of claim (7), complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency. When
complainant failed to respond within the time period specified in 29
C.F.R. � 1614.108(f), the agency issued a final decision.
In its October 11, 2005 FAD, the agency found no discrimination concerning
claim (7). The agency found that management articulated a legitimate,
nondiscriminatory reason which complainant failed to show was pretextual.
Further, the agency found that claims (1) - (6) and (8) - (12) were
properly dismissed on the various procedural grounds identified in its
May 9, 2005 partial dismissal, discussed above.
On appeal, complainant contends that he was subjected to further
harassment since November 22, 2004 "due to me representing a fellow
co-worker in an EEO Redress Hearing." Complainant further states that
from April 27, 2005 to May 9, 2005, he was on leave due to stress;
and on May 17, 2005, the Manager, Customer Services denied his Family
Medical Leave Act to care for his wife.
Claims (1) - (5), (8), (9), (11), and (12)
Based on a review of the record, including complainant's statement,
we find that a fair reading of complainant's complaint reflects that
complainant addresses a hostile work environment harassment claim.
Specifically, we find that complainant claimed that as a pattern
of harassment and retaliation, management unlawfully discriminated
against him after he represented a co-worker in her sexual harassment
case against an identified supervisor. In a claim of reprisal, the
Commission considers if an agency official, rather than encouraging
the realization of equal opportunity in the workplace, purportedly
created a chilling effect upon complainant's efforts to avail himself
of the opportunity to pursue the EEO complaint process. See Sanders
v. Department of Education, EEOC Request No. 05990744 (October 13, 2000).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. Id. (citing EEOC
Compliance Manual Section 8, "Retaliation;" No. 915.003 (May 20, 1998).
Instead the statutory retaliation clauses prohibit any adverse treatment
that is based upon a retaliatory motive and is reasonably likely to deter
the charging party or others from engaging in protected activity. Id.
The Commission determines that the incidents identified in claims (1) -
(5), (8), (9), (11) and (12, state a processable claim
Moreover, because the incidents addressed in claims (8), (9), (11) and
(12) were timely raised with an EEO Counselor, the Commission determines
that complainant filed a timely claim of harassment involving all the
incidents raised in the formal complaint Therefore, the Commission
determines that the agency improperly dismissed claims (1) through (4)
on the grounds of untimely EEO Counselor contact.
The agency also notes that regarding the agency's dismissal of claim
(2) for raising the same claim that was addressed in a previously
filed EEO complaint, the record does not contain a copy of the prior
formal complaint identified by the agency in its partial dismissal.
Absent evidence that complainant previously filed a formal complaint
on the same matter raised in claim (2), we find that the agency has not
substantiated the dismissal of this claim on these grounds.
The agency decision to dismiss claims (1) - (5), (8), (9), (11), and
(12) is REVERSED. These claims are REMANDED to the agency for further
processing in accordance with the ORDER below.
Claims (6) and (7): Finding of No Discrimination
The Commission notes that claim (6), which was dismissed by the agency,
relates to the issuance of a PDI on March 8, 2005, on the same matter
that precipitated the Letter of Warning identified in claim (7).
Where an individual has received EEO counseling on a proposed action,
such as the March 8, 2005 PDI, and the agency ultimately carries
out the proposed action, such as the Letter of Warning of March 11,
2005, an otherwise premature claim merges with the effected action.
See Seigel v. Department of Veterans Affairs, EEOC Request No. 05960658
(October 9, 1997). The Commission determines that the March 8, 2005 PDI
(claim (6)) merged with the issuance of the Letter of Warning (claim (7))
and will be considered by the Commission in the analysis that follows.
The Commission determines that a fair reading of the instant complaint
shows that complainant alleged that the agency harassed him not only
as reflected in the incidents identified in claims (1) - (5), (8),
(9), (11), and (12), as discussed above, but also regarding the matter
addressed in claim (7). Because the agency did not consider claim (7) in
the context of a harassment claim, and in light of our remand of claims
(1) - (5), (8), (9), (11) and (12), for the reasons discussed above,
we VACATE the agency's finding of no discrimination regarding claim (7).
This claim is REMANDED to the agency for further processing in accordance
with the ORDER below.
Claim (10): Breach Claim
Claim (10) appears to be a breach claim concerning a February 7, 2000
settlement agreement. The agency should have processed claim (10) as a
breach claim pursuant to 29 C.F.R. � 1614.504, et seq. which sets forth
the proper procedure for processing breach claims. As such, we find that
the agency improperly dismissed claim (10) for failure to state a claim.
The agency's dismissal of claim (10) is VACATED. This matter is REMANDED
to the agency for further processing in accordance with the ORDER below.
Accordingly, the agency's dismissal of claims (1) - (5), (8), (9),
(11) and (12) and finding of no discrimination concerning claim (7) is
REVERSED. The agency's dismissal of claim (10) is VACATED. Claims (1)
- (12) are REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. Regarding claims (1) - (5), (8), (9) and (11) - (12), the agency
is ordered to investigate these claims and to process them together with
claim (7) and to treat the complaint as a single claim of harassment in
accordance with 29 C.F.R. � 1614.108. Because the agency has already
completed an investigation of claim (7), the agency need only conduct
a supplemental investigation of this matter as necessary to comply with
this ORDER.
2. The agency shall acknowledge to complainant that it is VACATING the
finding of no discrimination regarding claim (7), and that it is further
processing claims (1) - (5), (7), (8), (9), (11) and (12) as a single
claim of harassment.
3. Within ninety (90) calendar days of the date that this decision
becomes final, the agency must take final action in accordance with 29
C.F.R. � 1614.110(b).
A copy of the agency's final actions regarding claims (1) - (5), (7)
- (9), and (11) and (12) must be sent to the Compliance Officer as
referenced below.
4. The agency shall investigate complainant's breach claim to determine
whether it is in compliance with the February 7, 2000 settlement agreement
(claim (10)). Within thirty (30) calendar days from the date this
decision becomes final, the agency shall issue a determination as to
whether the agency breached the applicable settlement agreement.
A copy of the agency's determination regarding claim (10) must be
submitted to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
May 10, 2006
__________________
Date
1The record reflects that the March 11, 2005 Letter of Warning was
expunged from complainant's official personnel folder on June 11, 2005,
through the grievance process.