0120082595
03-18-2009
Andrew Tengeres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andrew Tengeres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082595
Agency No. 4G-752-0189-08
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 14, 2008, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
During the relevant period, complainant was employed as a Postmaster at
a Texas agency post office. On February 21, 2008, complainant initiated
EEO contact alleging that the agency discriminated against him on the
basis of reprisal for prior protected EEO activity when, on February 9,
2008, his immediate supervisor, the Manager of Post Office Operations
(MPO) issued him letters with instructions to report for a physical
and psychological "fitness for duty" exam on February 14 & 22, 2008,
respectively. (Complainant's allegations concerning the fitness-for-duty
exams will hereinafter be referred to as "claim (1)"). Subsequently,
on March 10, 2008, complainant initiated EEO contact alleging that,
again in retaliation for prior EEO activity, his performance ratings
were lowered by the MPO and complainant's second line supervisor, the
Dallas District Manager. Complainant further alleged that on February
29, 2008, the MPO denied his request for rating recourse to obtain a
higher rating. (Complainant's allegations concerning his performance
ratings will hereinafter be referred to as "claim (2)"). Complainant
stated that he wanted the ongoing retaliation to stop.
Shortly thereafter, in a notice received by the office of complainant's
legal representative on March 24, 2008, an EEO Counselor informed
complainant of the right to file a formal EEO complaint regarding claim
(1). In a formal complaint of the same date, complainant reiterated
the claim alleged in (1). Then, in a counselor's report dated April
4, 2008, the assigned EEO counselor listed both claims (1) and (2) as
complainant's claims, and noted that complainant was unavailable for
counseling due to extended absences and his legal representative did
not provide information for counseling.
In its April 14 final decision, the agency dismissed claim (1) pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,
the agency stated that complainant failed to allege a personal loss or
harm with respect to a term, condition or privilege of employment for
which there is a remedy. The agency noted that on February 21, 2008,
another manager issued a letter cancelling the two scheduled exams. As to
claim (2), in a footnote, the agency asserted that complainant abandoned
this claim because he did not include it in his formal complaint of
March 24.
The instant appeal from complainant followed. On appeal, complainant
stated that he alleged hostile work environment harassment based on
retaliation, and initiated EEO contact with each harassing incident.
He stated that the agency failed to consolidate the various incidents and
he does not know the status of the other issues. Further, complainant
stated that the agency did not inform him that claim (2) was consolidated
with claim (1), so he attempted to file a separate complaint regarding
claim (2) on May 7, 2008. The record is not clear what happened to this
complaint, if anything. Complainant asked this Commission to remand his
consolidated claim of retaliatory harassment to the agency for further
processing.
A fair reading of the record reveals that complainant has asserted a claim
of an ongoing pattern of harassment based on retaliation for his prior EEO
activity, of which the scheduling of the fitness-for-duty examinations and
the alleged lowering of his performance ratings are examples. On appeal,
complainant asserts that other examples of the ongoing retaliatory
harassment are currently being processed in the EEO complaints process,
including an order for another fitness-for-duty exam, improper disclosure
of his confidential medical information, and some pay and leave issues.
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. ____,
126 S. Ct. 2405 (2006). To state a viable claim of retaliation,
complainant must allege that: 1) s/he was subjected to an action which
a reasonable employee would have found materially adverse, and 2) the
action could dissuade a reasonable employee from making or supporting
a charge of discrimination. Id. While trivial harms would not satisfy
the initial prong of this inquiry, the significance of the act of alleged
retaliation will often depend upon the particular circumstances. See also
EEOC Compliance Manual, No. 915.003 (May 20, 1998) (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 states
a claim).
Under the facts as alleged by complainant in this case, we find that he
has alleged a viable claim of ongoing retaliation that requires further
processing. This claim includes the order to undergo both physical and
psychological fitness-for-duty examinations, as well as the alleged
lowering of his performance ratings.1 To the extent possible, these
allegations should be consolidated for processing with complainant's
other allegations of retaliatory harassment that he asserts are still
pending in the EEO complaints process. Through this consolidation,
the factual allegations should be considered in support of complainant's
unifying claim of a pattern of ongoing retaliatory harassment.
ORDER
The agency is ordered to process complainant's claim of ongoing
retaliatory harassment (to include the orders for physical and
psychological fitness-for-duty examinations, the alleged lowering of his
performance ratings and any other related factual allegations including
those currently being processed separately) in accordance with 29 C.F.R. �
1614.108 et seq. If the other factual allegations related to the ongoing
harassment claim have already been investigated and are currently in
the hearing process, the agency shall promptly inform the AJ of this
decision and allow the AJ to decide how best to proceed with completing
the investigation of fitness-for-duty and performance rating allegations.
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. Unless instructed otherwise by an EEOC AJ,
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 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
March 18, 2009
__________________
Date
1 Complainant stated that he filed a separate complaint on the performance
ratings because the agency did not properly inform him that claim (2)
should be filed formally with claim (1). We agree with complainant that
the consolidation of (1) and (2) was not indicated in the agency's March
24 notice of right to file.
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0120082595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120082595