0120114114
02-13-2012
Klaus D. Grunheid, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Klaus D. Grunheid,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120114114
Agency No. 4F-920-0108-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 12, 2011, 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 City Letter Carrier at the Agency’s Post Office in Fontana,
California.
On July 23, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the basis of reprisal
for prior protected EEO activity when, on May 18, 2011, Complainant
was given an official discussion by his supervisor (Supervisor), at
the request of the Postmaster, for saying the word “damn” on the
workroom floor. Subsequently, on May 26, 2011, Complainant signed a
settlement agreement resolving a prior EEO complaint. On the same day
as he signed the settlement agreement, Complainant was called into the
Supervisor’s office and given an Investigative Interview for the May
18th utterance of the word “damn.”
The Agency dismissed the complaint finding that the matter failed to state
a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency noted that
the official discussion and the investigative interview did not render
Complainant aggrieved. As such, the Agency dismissed the matter.
The instant appeal followed. On appeal, Complainant indicated that on May
18, 2011, Complainant was issued an official discussion as discipline for
uttering the word “damn” in the workplace. Complainant accepted
the discipline and thought that the matter was over. It was only
after he signed his EEO settlement agreement on May 26, 2011, that the
Supervisor conducted an investigative interview into the utterance of
the word “damn.” Complainant asserted that the usual practice is
for the Agency to first conduct an investigative interview and then issue
disciplinary action. Here, Complainant argued that, in retaliation for
having to enter into an EEO settlement agreement with him, management
subjected him to an Investigative Interview for saying the word “damn”
in the workplace. Complainant indicated that it was unprecedented that
one would be disciplined and then subjected to an Investigative Interview.
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).
In the case at hand, we find that the Agency failed to properly
identify Complainant’s claim of reprisal. Complainant alleged that,
following being issued an official discussion, he was subjected to the
Investigative Interview in retaliation for his prior EEO complaint. The
Commission has a policy of considering reprisal claims with a broad view
of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939
(Apr. 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, supra. Moreover, the Commission
has found that the occurrence of an investigative interview may support a
claim of reprisal. Hants v. U.S. Postal Serv., EEOC Appeal No. 0120103092
(Jan. 4, 2011); Jewell v. U.S. Postal Serv., Appeal No. 0120091551 (June
3, 2009). We find that the Agency's actions here were reasonably likely to
deter employees from engaging in EEO activity. Therefore, the Commission
concludes that the Agency improperly dismissed Complainant's complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE the
Agency’s final decision and REMAND the matter for further processing
in accordance with the ORDER below.
ORDER (E0610)
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
February 13, 2012
__________________
Date
2
0120114114
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114114