Barney G., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120132266 Agency No. 4F940001813 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated April 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Palo Alto Post Office facility in Palo Alto, California. On March 20, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and disability (unspecified physical disability) when: 1. From September 2009 to November 2011, Complainant was denied the opportunity to work; and 2. On December 20, 2012 Complainant received a letter from an Agency attorney accusing him of making a fraudulent claim and threatening Complainant with legal action. The Agency characterized the claims slightly differently, finding that Complainant included a complaint alleging that management officials failed to respond to correspondence he had sent them. With regard to claim 1, the Agency found that Complainant was alleging that from September 2009 to November 2011, he was denied a reasonable accommodation. The Agency did not specifically address claim 2 and dismissed the claims on a number of grounds, finding that Complainant failed to state a claim, that his EEO Counselor contact was untimely, and that Complainant had previously raised the same matter before the Merit Systems Protection Board (MSPB). ANALYSIS AND FINDINGS We note initially that the Dismissal included a claim alleging that management officials failed to respond to correspondence dated December 13 & 20, 2012 from Complainant requesting financial reimbursement. A review of the record, however, reveals that the correspondence from Complainant related to requests for reimbursement from the Agency for allegedly denying Complainant the opportunity to work. We therefore find that the alleged denial of work and denial of reimbursement are the same claim. To the extent Complainant is arguing he was harmed by management officials ignoring his correspondence (as opposed to arguing he was harmed by being denied reimbursement), we note that 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Under such a standard we find that Complainant fails to state a claim because having correspondence ignored by management does not result in a present harm or loss with respect to a term, condition or privilege of employment. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record shows that the alleged incidents occurred between September 2009 and November 2011 but Complainant did not contact an EEO Counselor until January 15, 2013, which is beyond the forty-five-day limit. In his appellate brief, Complainant maintains that On or about November 14, 2011 [Complainant] was allowed to return back to his employment as a letter carrier working eight (8) hours day, five (5) days a week. After [Complainant] returned back to his employment [Complainant] discovered that the Agency had allowed other comparative employees to work, while denying [Complainant] the same opportunity. Complainant's Appeal Brief, p. 4. We note, however, that Complainant does not explain when or how he learned that other comparative employees had been allowed to work and we therefore find he has not provided sufficient justification for tolling or extending the time limitation. With regard to claim 2, we find that Complainant fails to state a claim of disparate treatment under Title VII or the Rehabilitation Act because receiving a threatening letter from an Agency attorney does not result in a harm or loss and does not render Complainant aggrieved. See Diaz. Complainant on appeal argues that the Agency has mischaracterized his complaint. Complainant argues that his "Formal Complaint identified all of the actions and practices that brought rise to [Complainant's] complaint," Complainant's Appeal Brief, p.5, but that the Agency fragmented and "narrowed the scope of Complainant's claims, in such a manner that Complainant's claims have become seemingly non-meritorious." Id. With regard to whether or not the Agency mischaracterized his complaint, we note that the only incidents of alleged discrimination specifically spelled out by Complainant in his Formal Complaint are the denial of work from 2009 to 2011, Management's failure to respond to his December 2012 request for payment, and a December 2012 response from an Agency attorney accusing Complainant of making a fraudulent demand for money and threatening Complainant with legal action. While Complainant also claims that "[b]y these and other acts it is my claim that the Agency has subjected me to ongoing illegal discrimination, denial of accommodation, denial of reasonable accommodation, and false allegations," Complainant has not specified what "other acts" he is referring to and has not provided any specifics about any alleged denial of "accommodation" or denial of reasonable accommodation. With regard to Complainant's argument that the denial of work between 2009 and 2011, and the December 2012 failure to respond to his correspondence and threat of legal action, should all instead be viewed as a single claim of ongoing harassment, we find such an argument to be unpersuasive. We note in this regard that the 2012 letter from the Agency attorney did not involve the management officials who denied him work and ignored his correspondence and therefore we do not find this to be part of the same pattern of harassment. This leaves just two incidents occurring more than a year apart, which we find to be too great a time-gap to plausibly constitute a single act of ongoing harassment. Finally, we note that on appeal, Complainant for the first time raises the issue of reprisal. Pursuant to 29 C.F.R. § 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation. Complainant maintains that on December 13, 2012 he notified the Postmaster of his intent to file an EEO complaint and that he subsequently received a letter from an Agency attorney threatening legal action. While such a claim fails to state a claim of disparate treatment under Title VII or the Rehabilitation Act, we note that the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). We therefore find that Complainant states a valid claim of reprisal regarding claim 2 because receiving a threatening letter from an Agency attorney is the kind of action that is reasonably likely to deter Complainant or others from engaging in protected activity. CONCLUSION Following a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has failed to state a claim of disparate treatment under Title VII or the Rehabilitation Act and that his EEO Counselor contact was untimely with regard to the claim alleging denial of work. We further find that, with regard to claim 2, Complainant states a valid claim of reprisal. We therefore AFFIRM the Dismissal in part and REVERSE in part and we REMAND claim 2 to the Agency to take remedial action in accordance with this decision and the Order below. ORDER (E0610) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. 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 October 30, 2013 __________________ Date 2 0120132266 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132266