Maranda B., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120132974 Agency No. 4G-770-0133-13 DECISION On July 28, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 28, 2013, dismissing her 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 Manager, Customer Service, EAS-24, at the Agency's DeMoss Station in Houston, Texas. On June 17, 2013, Complainant filed a formal complaint which the Agency defined as alleging that she was discriminated against based on reprisal for prior protected equal employment opportunity (EEO) activity [under Title VII and the ADEA when]: 1. On January 31, 2013, without prior notice she was asked to explain why her office was not making its budget; and 2. On February 28, 2013, she was yelled at by a manager who told her to shut up and not talk back to him. The Agency dismissed the complaint for failure to state a claim. Regarding issue 1, the Agency conceded that Complainant was concerned that management's questioning may result in her prior EEO award becoming one of the subjects of discussion. The Agency found that it was only natural for any meetings between operational managers and their upper management to discuss a unit going over budget. Regarding the entire complaint, the Agency found that Complainant was not aggrieved and the incidents alleged did not rise to the level of actionable harassment, nor would they deter a reasonable person from engaging in protected EEO activity. ANALYSIS AND FINDINGS In Russell v. United States Postal Service, EEOC Appeal No. 0720110055 (Nov. 17, 2011), the EEOC upheld an EEOC AJ's rulings that Complainant was discriminated against based on her sex when she was constructively discharged effective January 15, 2009, and that she was entitled to $175,000 in non-pecuniary damages, $50,010.25 in attorney fees, costs, and an expert fee, and back pay with interest. The Agency did not challenge the AJ's finding that Complainant was also discriminated against when she was placed on administrative leave with pay on July 11, 2008, and was not selected for the position of Station Manager, EAS-24, at the DeMoss Station. On appeal Complainant argues that the Agency's definition of her complaint mischaracterized issue 1 and minimized issue 2. By way of background, she explains that as the DeMoss Station Manager, a title she uses interchangeably with DeMoss Manager of Customer Service, she was responsible for operating the unit within an annual budget set by Agency management. Complainant explains that the annual budget includes projected annual Total Operating Expenses, which for fiscal year 2013 initially did not include "EEO Awards." On issue 1, in her complaint Complainant alleged that at a District Office meeting on January 31, 2013, which included other station managers, a power point presentation reflected that her station was $408,585 over Total Operating Expenses, a reference to her EEO award. In her complaint she contended that an hour before and at the meeting she was asked to explain this overage, and the 408,585 figure on the power point generated comments from some attendees on whether it was related to her EEO award. Complainant alleged in her complaint that she would be evaluated against a Total Operating Expenses measurement, which would be impossible to meet because her EEO award was being factored in. On appeal, Complainant elaborates that her unit being over budget as a result of her EEO award would constrain her ability to obtain additional resources for unexpected or unplanned contingencies, hamstringing her since there would be little room in the budget. She adds that staying within the budget is one of the major components of her performance evaluation, and being over budget causes her to be marginalized and characterized as an underperformer by both management and her peers. On issue 2, Complainant points out that the incident occurred on a teleconference call with 10 of her co-workers in attendance. She referred to this in her complaint. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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. Based on Complainant's argument on appeal, and a review of her complaint, we find that the Agency did not accurately capture issue 1. Complainant is alleging that she was discriminated against in reprisal for prior EEO activity when she learned on January 31, 2013, that her large EEO award against the Agency was being counted against her in the Total Operating Expenses of her fiscal year 2013 unit annual budget, making her significantly over budget, that her award amount was part of a power point presentation in a public meeting on January 31, 2013, generating comments from some attendees on whether this was her EEO award amount, and she was asked to discuss why she was over budget for this meeting when her EEO award was the cause. In its FAD, the Agency found that Complainant's concern that being asked to explain why she was over budget may result in her prior EEO award being discussed was speculative. According to the counselor's report, the involved manager asserted after an objection from Complainant that he advised her she did not have to discuss her EEO award, but conceded that the expenditure at issue involved grievance payouts, which Complainant contends refers to her EEO award. We find that the Agency's actions in issue 1, as redefined here, would reasonably likely deter EEO activity. Accordingly, the Agency's dismissal of issue 1 is reversed. We agree with the Agency that issue 2 fails to state a claim. Complainant does not contend that the involved manager was an alleged perpetrator in one of her prior complaints, or that he perpetrated other incidents of alleged harassment. Without more, we find that this was an isolated incident that does not rise to the level of actionable harassment. CONCLUSION The Agency's dismissal of issue 1, as redefined herein, is REVERSED. The Agency's dismissal of issue 2 is AFFIRMED. ORDER The Agency is ordered to process issue 1, as redefined herein, in accordance with 29 C.F.R. § 1614.108. In issue 1 Complainant alleges that she was discriminated against in reprisal for prior EEO activity when she learned on January 31, 2013, that her large EEO award against the Agency was being counted against her in the Total Operating Expenses of her fiscal year 2013 unit annual budget, making her significantly over budget, that her award amount was part of a power point presentation in a public meeting on January 31, 2013, generating comments from some attendees on whether this was her EEO award amount, and she was asked to discuss why she was over budget for this meeting, when her EEO award was the cause. 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 January 8, 2014 __________________ Date 2 0120132974 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132974