0120131902
08-21-2013
Rogelio Gutierrez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Rogelio Gutierrez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120131902
Agency No. 4G780003013
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 27, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Main Post Office in McAllen, Texas. Complainant is also president of the union.
On March 4, 2013, Complainant filed a EEO formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when, on November 7, 2012, he was questioned about his presence at the Brownsville Post Office in a loud, aggressive tone; and management did not allow him more than 30 minutes to work on an EEO complaint.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that it referred the matter of denial of sufficient official time to the manager of EEO Compliance and Appeals. The instant appeal followed.
ANALYSIS AND FINDINGS
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. An agency shall accept a complaint from any 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).
Here, Complainant appeared at a facility where he did not work to assist another employee in filling out forms. We find that he has not alleged facts that suggest he was subjected to personal harm when asked about his presence and told to go to the break room. This allegation is not sufficient to state a claim of retaliatory harassment. 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. U.S. Postal Serv., 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. Under the facts of this case, when we apply these principles we find that Complainant has failed to set forth a viable claim of reprisal. Accordingly, the Agency's final decision dismissing Complainant's retaliatory harassment claim is AFFIRMED.
However, we also note that Complainant has alleged that he was denied official time to work as a representative on another employee's EEO complaint. Pursuant to 29 C.F.R. � 1614.605(b), an Agency employee designated as the representative of another employee for the processing of an EEO complaint shall have a reasonable amount of official time "to prepare the complaint and to respond to agency and EEOC requests for information." The Commission has stated that an allegation pertaining to the denial of official time states a separate claim alleging a violation of the Commission's regulations that does not require a determination of whether the action was motivated by discrimination. Bryant v. Dep't. of Treasury, EEOC Appeal No. 0120065274 (Feb. 25, 2009) (citing Edwards v. United States Postal Service, EEOC Request No. 05960179 (December 23, 1996)). The focus is on whether Complainant was actually denied a reasonable amount of official time. Id. Therefore, the Agency will comply with the Order below.
ORDER
The Agency, within thirty (30) calendar days of this decision becoming final, shall issue a written determination on whether or not Complainant was denied a reasonable request for official time as alleged to work as a representative on an EEO complaint. If Complainant was improperly denied official time, the Agency shall also determine if he took personal leave instead. If so, the Agency shall reimburse Complainant for any leave that he incurred. A copy of the Agency's determination and reimbursement action, if necessary, shall be provided to the Compliance Officer as set forth 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
August 21, 2013
__________________
Date
2
0120131902
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013