0120081492
05-20-2008
Cedric N. Holley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cedric N. Holley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081492
Agency No. 4K-280-0008-08
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated January 23, 2008, 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.
In his complaint, complainant alleged that he was subjected to
discrimination based on reprisal for prior protected EEO activity under an
EEO statute that was unspecified in the record when he was singled out,
harassed, and slandered by his acting supervisor from August to October
2007, when, for example:
* on August 23, 2007, during a staff meeting in front of his co-workers
she said "don't be like Cedric on Route 9, get your red book in so I
can send them up in time (a negative reference to complainant's work
practice),
* on October 3, 2007, in reply to a customer in the post office who
was complaining about a service incident, she said in front of others
"the carrier (complainant) on Route 9 is a continuous problem,"
* on October 13, 2007, she refused to accept his doctor's appointment
schedule date card (and the postmaster did not intervene), forcing
complainant to go to the doctor to get one signed by the doctor,
* on October 17, 2007, complainant asked his acting supervisor to make
an adjustment with the telephone lines so she could receive a facsimile
about another medical appointment, and she declined, and
* on October 19, 2007, upon complainant arriving at work, she told him
"today is your X day," a reference to changing his scheduled off-day to
that day without appropriately informing him.1
The FAD dismissed the complaint for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that complainant had no previous EEO
activity because he did not previously file a complaint. Accordingly,
it found complainant did not state a valid purview of discrimination.
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; see also Carroll, supra. We find
that these one or two incidents, standing alone, would not likely deter
EEO activity.2
However, if complainant's complaint is alleging reprisal discrimination
for prior EEO activity which occurred prior to all the incidents, it
would state a claim because taken together, the harassment meets the
criteria of likely deterring EEO activity, i.e., repeatedly and publicly
in front of others embarrassing complainant about his performance,
making allegedly onerous documentary requirements to show he has a
medical appointment to excuse absence and deliberately making it more
difficult to get the documentation to her, and changing his schedule
without appropriate notice.
The counselor's report commented that complainant alleged reprisal in
his complaint based on retaliation for prior EEO activity, but there was
no record of any prior EEO complaints and this was not mentioned during
counseling. On appeal, in reference to this comment, complainant writes
it is incorrect. However, he does not indicate which part is incorrect,
i.e., that he is alleging reprisal for prior EEO activity, or that he did
not raise reprisal during EEO counseling and/or there was no record of a
prior EEO complaint. This needs to be clarified so it can be determined
whether complainant has stated a valid purview of discrimination.
Accordingly, the FAD is VACATED.
ORDER
Within 15 calendar days after its receipt of this decision, the agency is
ordered in writing (and follow up orally, if necessary) to ask complainant
to clarify what he meant in his complaint when he checked the purview of
"Retaliation" so a determination can be made on whether his complaint
states a claim. The agency shall then reconsider whether or not, in
accordance with the determinations herein on what would likely deter EEO
activity, the complaint states a claim, and shall issue a decision either
accepting the complaint for further processing under 29 C.F.R. Part 1614
or again dismiss the complaint for failure to state a claim, with appeal
rights to the Commission.
A copy of the agency's letter to complainant requesting clarification
and the subsequent decision letter must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (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 (Z0408)
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 20, 2008
__________________
Date
1 The FAD's definition of the claims in complainant's complaint varied
in some details to the definition above. The above definition better
captures complainant's complaint.
2 Complainant initiated contact with an EEO counselor on October 17,
2007, in regard to the instant complaint. One or two of the alleged
incidents of harassment, i.e., the acting supervisor declining to make
an adjustment to the fax telephone line to receive a facsimile and the
schedule change, occurred after this EEO activity.
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0120081492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081492