0120090081
02-13-2009
Dennis Beauregard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis Beauregard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090081
Agency No. 4B028006308
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 5, 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.
At the time of the events at issue, complainant was employed by the
agency as a City Carrier at the Woonsocket, Rhode Island Post Office.
In a formal EEO complaint dated September 2, 2008, complainant alleged
that he was subjected to discrimination on the basis of reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act
of 1964. The agency dismissed the complaint, pursuant to 29 C.F.R. �
1614.107(a)(1) and (2), for failure to state a claim and/or untimely
EEO counselor contact. The instant appeal followed.
In its dismissal decision, the agency characterized the complaint
as asserting unlawful retaliation "when on or about May 10, 2008,
[complainant] believed [his] pay was deliberately short and pay records
were manipulated." The agency reasoned that this failed to state a claim
because complainant ultimately received the correct pay and benefits in
2007 through the grievance process, and because there was no indication
that complainant had engaged in prior protected activity. In the
alternative, the agency dismissed for untimely EEO counselor contact,
asserting that complainant's initial contact with the counselor was on
July 1, 2008, beyond the regulatory 45-day period from May 10, 2008.
Upon review, the Commission concludes that the agency incorrectly
characterized the complaint in this matter, therefore applying its
dismissal analysis incorrectly. A fair reading of the complaint, in
conjunction with the EEO Dispute Resolution Specialist's (EEO counselor's)
report reveals that in fact complainant was alleging after he told the
Postmaster on July 1, 2008, that he intended to file an EEO complaint
concerning the paycheck tampering issue, he was subjected to ongoing
retaliatory harassment. The EEO counselor's report details the alleged
harassment to include: on July 1, 2008, the Postmaster questioned
complainant about the use of unauthorized overtime; on July 2, 2008,
the Postmaster discussed complainant's street time, performed street
supervision, and conducted a road observation; on July 3, 2009, the
Postmaster notified complainant that a Letter of Warning dated April 29,
2008, would remain in his personnel file for two years despite an earlier
grievance settlement that it would be removed after three months; on July
8, 2008, he was given a pre-disciplinary interview regarding the use of
directional signals on July 2, 2008; and the Postmaster made a number
of negative comments to him, including, "Are you afraid of me?", "You're
not man enough to come any closer and get the chock block from me",
"I think you are nothing but a piece of shit and think you are a liar",
and "It's just a matter of time before you won't be getting a paycheck."
Shortly thereafter complainant was out of work for on sick leave (FMLA)
from July 10 - August 15, 2008. 1
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 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. In addition, under
the Commission's broad view of reprisal, a complainant need only allege
that he suffered harassment that was based upon a retaliatory motive
and is reasonably likely to deter the charging party or others from
engaging in protected activity. See EEOC Compliance Manual Section 8,
"Retaliation," No. 915.003 (May 20, 1998), at 8-15. A complaint should
not be dismissed for failure to state a claim unless it appears beyond
doubt that the complainant cannot prove a set of facts in support of
the claim which would entitle the complainant to relief. The trier of
fact must consider all of the alleged harassing incidents and remarks,
and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
In applying this standard, we find that complainant has set forth
an actionable claim of retaliatory harassment. The EEO counselor's
report reveals that he clearly alleged that immediately after he
told the Postmaster he was going to file an EEO complaint about the
pay issues, the Postmaster engaged in campaign of ongoing harassment,
threatened discipline, revoked a grievance settlement to remove a letter
of warning from his record, and made numerous intimidating and insulting
comments. Together this is sufficient to state a claim of retaliatory
harassment/hostile work environment that was timely raised.
To the extent complainant was also attempting to raise his pay claims in
this complaint, we agree with the agency that these were untimely raised
as the most recent occurrence, on May 10, 2008, was more than 45 days
before complainant's initial EEO counselor contact. This untimeliness
would not be a basis for dismissal if the paycheck issues were part of
the alleged pattern of harassment as the Supreme Court has held that a
complainant alleging a hostile work environment will not be time barred if
all acts constituting the claim are part of the same unlawful practice
and at least one act falls within the filing period. See National
Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002).
However, in this case we do not find that the pay issues are linked to
the harassment, as the protected activity (telling the Postmaster he
was going to file an EEO complaint about the pay issues) occurred after
May 10 and involved a different management official. To this extent,
we affirm the agency's dismissal of the pay issues (occurring May 10,
2008 and earlier) as untimely raised.
Accordingly, we REVERSE the agency's dismissal of the complaint and
REMAND it to the agency for further processing in accordance with the
following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (retaliatory
harassment/hostile work environment) in accordance with 29 C.F.R. �
1614.108 et seq. 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 (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 (M1208)
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 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 (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 (Z1008)
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
February 13, 2009
__________________
Date
1 We do note that complainant also alleged pay tampering in January
and May 2008, as well as on eight occasions from January 2005 through
July 2005.
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0120090081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090081