John F. Murphy, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency.

Equal Employment Opportunity CommissionOct 26, 2010
0120102787 (E.E.O.C. Oct. 26, 2010)

0120102787

10-26-2010

John F. Murphy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Headquarters) Agency.


John F. Murphy,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Headquarters)

Agency.

Appeal No. 0120102787

Agency No. 66000002110

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated May 7, 2010, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

BACKGROUND

In a complaint dated April 20, 2010, Complainant alleged that the Agency subjected him to hostile workplace discrimination on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII, in that since March 9, 2010, he became aware that he was being investigated by the U.S. Postal Inspection Service and/or the Office of Inspector General (OIG); his personal property and files were seized; and he was placed on Administrative Leave.

In its final decision, the Agency determined that none of Complainant's "specific files" were targeted for the internal investigation, and it does not appear that the Investigative interview resulted in any discipline or other adverse action to Complainant. Further, Complainant has not shown that he has suffered a personal loss or harm with respect to a term, condition, or privilege of employment.

In Complainant's appeal statement, he adamantly asserts that he has been harmed by the confiscation of his personal property, including his EEO file. Complainant also asserts that unlawful retaliation is the Agency's motive in this matter.

ANALYSIS AND FINDINGS

The Commission has previously held that being subject to an OIG investigation does not render an individual aggrieved under the EEOC regulations. See Johnson v. Department of the Navy, EEOC Request No. 05960699 (April 16, 1998); Mattocks v. Department of the Navy, EEOC Request No. 05950549 (August 29, 1996).

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. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, 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.

To state a viable claim of retaliation, complainant must allege that: 1) 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. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. ____, 126 S. Ct. 2405 (2006). 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).

The Commission finds that Complainant's claims, based upon sex, fail to state a viable claim. However, regarding complainant's claim of reprisal, Complainant has alleged that he was subjected to actions which a reasonable employee would have found materially adverse, and these actions could dissuade a reasonable employee from making or supporting a charge of discrimination.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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. 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 (K0610)

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 (M0610)

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), at 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 (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 (Z0610)

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

October 26, 2010

__________________

Date

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0120102787

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120102787