U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrell C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120152271 Agency No. 1J-482-0027-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 19, 2015, dismissing his complaint of unlawful employment discrimination. BACKGROUND During the period at issue, Complainant worked as an Electronic Technician at the Agency's facility in Pontiac, Michigan. On April 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity. In its final decision dated May 19, 2015, the Agency determined that Complainant's complaint was comprised of the following claim: On January 25, 2015, [Complainant's] manager approached [him] in an aggressive manner, yelled at him, and threw his belongings on the floor. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned that this matter would not deter a reasonable person from engaging in protected activity. The instant appeal followed. On appeal, Complainant asserts that at the time of the incident in question he was the representative in two EEO complaints in which the manager at issue was named as a responsible management official. He further asserts that when the alleged incident occurred (manager started screaming at Complainant and "charging up" in back of Complainant) he was troubleshooting "a high voltage motor driven piece of equipment." Complainant states that the manager's actions put his safety at risk. In addition, Complainant asserts that this manager has taken numerous actions with respect to other employees which have created a hostile work environment. In response, the Agency requests that we affirm its final decision. ANALYSIS AND FINDINGS We find that the Agency improperly dismissed Complainant's complaint for failure to state a claim. We note that Complainant lists the basis of reprisal for the instant complaint. 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 unlawful retaliation. EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998); Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provisions protect individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process). Regarding the alleged incident, Complainant asserts at the time of the incident in question, he was working on a live high voltage piece of equipment and that the manager charged him from behind and was screaming at him and started to throw Complainant's personal belongings in front of the machine. We find that the alleged incident could reasonably deter Complainant or others from engaging in protected activity. In addition, Complainant alleges that the manager at issue referred to one of his co-workers as "a money grubbing EEO employee." We note that while Complainant alleges that the manager made this statement in reference to a co-worker, we find that this alleged statement could also reasonably deter Complainant or others from engaging in protected activity. Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant was told that filing an EEO suit was the wrong way to go about getting a promotion); Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009), (per se violation found when a labor management specialist told the complainant, "as a friend," that his EEO claim would polarize the office); Vincent v. United States Postal Serv., EEOC Appeal No. 0120072908 (August 3, 2009), req. to recons. den., EEOC Request No. 0520090654 (Dec. 16, 2010) (per se violation found when supervisor during an employee meeting referenced that EEO complaints had been filed and said ""what goes around, comes around"). When a supervisor's behavior has a potentially chilling effect on the use of the EEO complaint process -- the behavior is a per se violation. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter to the Agency 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 12, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152271 2 0120152271