Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120142959 Agency No. 1K-221-0029-14 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 14, 2014, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's Processing and Distribution Center in Merrifield, Virginia. On June 29, 2014, Complainant contacted the EEO Counselor when she was told by the Supervisor to speak with him on May 29, 2014. During that meeting, Complainant was questioned about how she obtained evidence in support of her pending EEO complaint against the Supervisor. She was pressed for information on anyone who helped her, creating more stress. The Supervisor found Complainant to be "uncooperative and refused to answer his questions." The matter could not be resolved informally. As such, on August 5, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when, on May 29, 2014, the Supervisor subjected Complainant to a Pre-Disciplinary Interview. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency found that the alleged event did not cause a harm or injury to Complainant with respect to a term, condition or privilege of employment. Further, to the extent Complainant alleged that she was subjected to harassment, the Agency found that this single event was not sufficient to state a claim. As such, the Agency dismissed the complaint for failure to state a claim. Complainant appealed asserting that the Supervisor had subjected her to unlawful retaliation based on her prior EEO activity. In addition, since the filing of her compliant, Complainant has asserted that the Supervisor has issued discipline against her in the form of a 14-day suspension and additional acts of harassment. As such, she asked that the Commission reverse the Agency's dismissal. The Agency requested that the Commission affirm its dismissal. ANALYSIS AND FINDINGS Upon review of the record, we find that the Agency failed to properly define the claim at hand. A fair reading of the record shows that Complainant alleged retaliatory harassment. In support of her claim, she has indicated that the Supervisor subjected her to a pre-disciplinary interview and has intimidated her by discussing her evidence she provided in support of her prior EEO complaint. Further, on appeal, Complainant has added additional subsequent acts in support of her complaint. She indicated that she has been issued a 14-day suspension and standing within two inches of her. As such, we shall review the Agency's dismissal of Complainant's compliant in light of this claim of retaliatory harassment. 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). Regarding complainant's claim of reprisal, 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. Upon review of the record, we find that Complainant has alleged a claim of unlawful retaliation in that she has asserted an action which would be reasonably like to deter Complainant or others from engaging in protected activity. In addition, Complainant has provided evidence on appeal that the pre-disciplinary action has resulted in a 14-day suspension decision by the Agency. We note that when a complaint is filed on a proposed action and the Agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). As such, we find that Complainant has not only alleged harassment and discrimination with respect to the pre-disciplinary action but also the subsequent 14-day suspension issued on September 30, 2014. 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 January 22, 2015 __________________ Date 2 0120142959 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142959