0120161270
03-07-2017
Lazaro G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lazaro G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161270
Agency No. 4G780004616
DECISION
Complainant timely appealed to this Commission from the Agency's February 4, 2016 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Main Post Office facility in Harlingen, Texas.
On January 20, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the basis of reprisal for prior protected EEO activity when:2
1. On November 4, 2015, he was subjected to an Investigatory Interview;
2. On November 8 through 14, 2015 his annual leave was cancelled; and
3. From January 11, 2016 through January 13, 2016, his assigned ADR Specialist mishandled the processing of the instant complaint by failing to conduct unbiased pre-complaint EEO counseling, denying ADR as a means of resolution, and informing Complainant that Claims 1 and 2 would not be investigated because Complainant's counseling statement was "in with [Complainant's] initial complaint"
On November 4, 2015, the Supervisor of Customer Service, ("S1") called Complainant in for an investigative interview. According to the record, S1 does not remember this meeting. However, Complainant recalls that S1 questioned him for thirty minutes and "demanded" any evidence Complainant had against S1 or the Agency. Complainant further alleges that S1 made multiple unspecified accusations against him and told Complainant that he (S1) had a right to review any statements from employees or witnesses in Complainant's possession. Complainant states in the record that he did not know why S1 made the request as he never told anyone that he had any evidence against S1 or Agency management. Nevertheless, Complainant told S1 that he would not make any of the requested documents available. Complainant could not recall any additional specifics about the meeting, and no further action on the matter was taken.
On November 10, 2015, Complainant reported to work, even though S1 approved an annual leave request for that date because he misinterpreted the work schedule. Earlier that week, Complainant noticed that his name was not under his usual route on the schedule for the days he would be on leave; however, he saw that S1 left his route was blank. According to S1, Complainant's route was blank because had not yet scheduled a replacement. Once S1 explained this to Complainant, he left the facility and took the remainder of his scheduled leave.
The Agency dismissed Claims 1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, and based on the record, has not yet addressed Claim 3.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has found that where, as with Claims 1 and 2, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a harassment claim may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Likewise, for retaliation claims, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to state a claim. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). In accordance with Commission policy, reprisal claims are considered with a "broad view of coverage" so that a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
With respect to Claim 1, as the Agency aptly notes in its final decision, we have long held that investigative interviews alone do not sufficiently render an employee aggrieved unless they result in some concrete action. See Keller v. United States Postal Serv., EEOC Request No. 01923077 (Aug. 26, 1992). A "concrete action" refers to discipline or any other employment action that could render an employee aggrieved under Diaz. See Blake v. United States Postal Serv., EEOC Appeal No. 0120063749 (May 1, 2007). However, where, as here, there is a claim of retaliatory harassment, the resulting adverse action does not have to be an "ultimate employment action" or materially affect the terms and conditions of employment to constitute retaliation. See Jameson v. United States Postal Serv., Appeal No. 0120130992 (May 21, 2013) citing Lindsey, supra. even if an investigation does not result in an employment action it still may be considered as part of the overall harassment claim. See Jameson, supra; Ambrose v. Dep't of Transportation, EEOC Appeal No. 0120113178 (Nov. 21, 2012).
According to Complainant, the investigative interview was for "intimidation purposes only." Complainant recounted how S1 allegedly had a blank investigation form at the meeting, yet did not take any notes. Complainant also alleges that the interview took place one day after he received a document from the Agency's National EEO Investigative Services. However, the document is not in the record, and Complainant does not explain what it was or how it pertained to the alleged investigative interview. Complainant is unable to recount what the meeting was about, only that he was repeatedly "threatened and intimidated" by S1 about something he was unclear of. By Complainant's account, his union representative was present at this interview, yet there is no indication that he or she was contacted as a witness during the precomplaint investigation to obtain clarification, and confirm that the meeting even occurred, as S1 stated that he did not remember it. Also, there is no evidence that any further action, concrete or otherwise resulted from the interview. Having thoroughly reviewed the record, we find the alleged discriminatory action in Claim 1 does not rise to the level of severity and pervasiveness to constitute harassment, nor is it likely to deter an individual from engaging in EEO activity.
As for Claim 2, Complainant acknowledges in the record that his annual leave for November 8, 2015 through November 14, 2015 was not canceled, so we are unclear as to what the alleged adverse action is. There are time sheets in the record supporting that Complainant was on leave for these dates. Complainant has not provided any additional evidence on appeal and does not dispute S1's account that Complainant arrived to work on November 10, 2017 due to a misunderstanding of the schedule, which Complainant was not on. The inconvenience caused by unnecessarily reporting to work, does not rise to a level of severity and pervasiveness necessary to constitute harassment. Claim 2 also fails to state a claim of reprisal, as this incident is not reasonably likely to deter protected activity.
Finally, Claim 3 concerns allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint, which cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("EEO MD-110"), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); see also Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013). When a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra.
Our guidance also provides that "a complainant must raise any dissatisfaction with the processing of his/her complaint before the Administrative Judge issues a decision on that complaint, the agency takes final action on the complaint, or either the Administrative Judge or the agency dismisses the complaint." EEO MD-110 at Ch. 5, IV.A.12 and IV.D. Here, Complainant detailed his allegations that his complaint was mishandled and that his ADR Specialist acted on improper bias in favor of the Agency in his Formal Complaint. The record does not specify if the matter was forwarded to the Agency official responsible for the quality of complaints processing, and does not contain an explanation for why the Agency took no further action on the matter as required by EEO MD-110. We find Claim 3 constitutes a separate, timely allegation of dissatisfaction of the processing of a pending EEO Complaint.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant identifies his prior EEO activity as Agency Nos. 4G780008614 and G780007515, which are currently pending before this Commission as EEOC Appeal Nos. 0120152444 and 0120152832, respectively.
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