0120110643
04-15-2011
Reynaldo Villanueva, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Reynaldo Villanueva,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110643
Agency No. 4G-770-0243-10
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated September 27, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a T-6 Letter Carrier at the Agency's Park Place Station facility in
Houston, TX. As a T-6, Complainant rotates on five different routes.
He filed a complaint, as amended, which the Agency defined as whether it
discriminated against him based on his age (53) and reprisal for prior
protected EEO activity [under Title VII and the ADEA] when:
a) on May 18, 2010, he was issued a letter of warning;
b) on July 1, 2010, he was questioned about going over his projected
overtime; and
c) on August 30, 2010, he was scheduled to be counted and walked with
[a route inspection].
Complainant was given the above letter of warning, dated May 17, 2010.
He filed a grievance on it which was resolved on July 15, 2015, via a
settlement, reducing it to a discussion.
A review of the complaint, which appears to have been filed on a series
of Information for Pre-Complaint Counseling forms, and one sheet of lined
paper, reveals that Complainant alleged he was subjected to a hostile
work environment when alleged incidents of discrimination occurred.
In addition to the incidents in a, b and c, Complainant wrote in his
complaint that he was subjected to five route inspections, and was
told this would occur for all the routes he carries. Complainant wrote
that when he pointed out that nothing wrong was found with his work on
inspection, the supervisor replied "well that's why we're doing it,"
indicating management wanted to continue the route inspections until they
found something wrong. Complainant also claimed that he was repeatedly
called into the office and accused of missing scanning points on the
routes which he did not because they are not there. He also contended
that the Agency improperly canceled a mediation session.
The Agency dismissed the complaint for failure to state a claim. On claim
"a," the Agency cited a case for the proposition that where a letter of
warning is reduced to a discussion, the complainant has not suffered a
personal loss or harm to a term, condition, or privilege of employment.
Stevenson v. United States Postal Service, EEOC Appeal No. 01A52057
(April 27, 2005). On claims b and c, the Agency reasoned that they
did not rise to the level of actionable harassment and Complainant was
not aggrieved.
CONTENTIONS ON APPEAL
Complainant contends that the Agency did not accurately characterize his
complaint, and discusses the claims he raised therein, as referenced
above. Regarding claim b, Complainant writes that the supervisor
took a threatening tone when talking to him. He contends that he was
subjected to delivery route inspections on August 30, 2010, September 1,
2010, September 10, 2010, September 15, 2010, and September 18, 2010,
and was called into the office and questioned about missed scans on
September 13, 2010, September 14, 2010, September 21, 2010, September
22, 2010, and September 23, 2010. He writes that he was subjected to a
pre-disciplinary interview on October 10, 2010, and was told disciplinary
action may be forthcoming. Complainant complains that his mediation
session was canceled. In opposition to the appeal, the Agency urges
that the FAD be affirmed.
ANALYSIS AND FINDINGS
Based on our review of the record, we find the correct definition of
Complainant's complaint is whether he was discriminatorily harassed
based on his age (53) and reprisal for prior EEO activity under Title
VII and the ADEA when:
1. he was issued a letter of warning dated May 17, 2010;
2. on July 1, 2010, in a goading manner, he was questioned about going
over his projected overtime;
3. he was subjected to delivery route inspections and/or monitoring on
August 30, 2010, September 1, 2010, September 10, 2010, September 15,
2010, and September 18, 2010;
4. he was questioned about missed scans on September 13, 2010, September
14, 2010, September 21, 2010, September 22, 2010, and September 23,
2010; and
5. the Agency canceled a mediation session.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. Harris, at 21-22. Thus, not all claims of
harassment are actionable. Where a complaint does not challenge an
agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
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.
In dismissing claim 1, as numbered in this decision, the Agency relied
on Stevenson v. United States Postal Service, EEOC Appeal No. 01A52057
(April 27, 2005). In Stevenson, the complainant alleged discrimination
when in September 2004, he was issued a seven day suspension which
was rescinded in a grievance settlement on November 17, 2004, prior to
the filing of the formal complaint. In dismissing the complaint, the
Commission found that the complainant did not show that he suffered a
personal loss or harm to a term, condition, or privilege of employment.
Complainant's letter of warning was given for failure to follow
instructions to complete delivery of his route by 4 PM, and returning 90
minutes late, using 90 minutes of unjustified overtime. Complainant is
contending that the letter of warning was given as part of a hostile
work environment of unfairly disciplining him for his performance and
attacking his performance, which includes subsequent questioning of
him about his use of overtime, repeated route inspections, and repeated
questioning about missing scanning points that don't exist. He contended
that when he pointed out that nothing wrong was found with his work on
an inspection, the supervisor replied "well that's why we're doing it,"
indicating management wanted to continue the route inspections until they
found something wrong. The facts of this case are distinguishable from
Stevenson, because Complainant is alleging the letter of warning was given
as part of the above hostile work environment, and hence states a claim.
See Simmons v. United States Postal Service, EEOC Appeal No. 0120103342
(November 23, 2010).
Applying the above case law, we find claims 1, 2, 3 and 4, as numbered
in this decision, state an actionable claim of harassment. We also
find that taken together, such actions would reasonably likely deter
EEO activity. Accordingly, the Agency's dismissal of these claims,
explicitly or by omission, is reversed.
Claim 5 fails to state a claim and is dismissed. Agency management is
free to choose whether to participate in mediation, and failure to do
so does not state a claim.
The Agency's dismissal of claims 1, 2, 3 and 4, as numbered in this
decision, is REVERSED. Claim 5, as numbered in this decision, is
DISMISSED.
ORDER
The Agency is ordered to process the claims 1, 2, 3 and 4, as defined
and numbered in this decision, in accordance with 29 C.F.R. � 1614.108.1
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 (T0610)
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 (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
April 15, 2011
__________________
Date
1 At one point below, Complainant also alleged discrimination on his
protected bases of sex (male) and race (Hispanic). On remand, the
Agency shall ask Complainant to clarify which of his protected bases
of discrimination he is raising, e.g., age, reprisal, sex, and race,
and investigate those bases.
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0120110643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110643