Lyla D. Jameson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120130992 Agency No. 1F953001112 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated November 21, 2012, 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 Mail Processing Equipment Mechanic (MPE) at the Agency's Stockton Post Office facility in Stockton, California. On November 2, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of sex (transgender) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Over the past 20 months her work was tracked and signed off on; 2. On November 22, 2011, her locker was broken into and her property was left out to be stolen; 3. On September 27, 2012, her supervisor repeatedly referred to her as "he"; and 4. On October 2, 2012, she was scheduled for an investigative interview. Complainant requested that the Agency amend these claims to a complaint that is currently at the hearing process with an EEOC Administrative Judge (AJ), docketed as Agency complaint number 1F-953-0002-12, EEOC hearing number 550-2012-00286X. On November 21, 2012, the Agency dismissed the complaint. The Agency found that claims 1 and 2 should be dismissed because they were the subject of a previous complaint that is currently pending before an EEOC AJ, docketed as Agency complaint number 1F-953-0002-12, EEOC hearing number 550-2012-00286X. The Agency found that claims 3 and 4 should be dismissed for failure to state a claim because she failed to state a claim. Complainant now appeals the dismissal to the Commission. ANALYSIS AND FINDINGS Claims 1 and 2 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. Complainant previously filed a complaint, docketed as Agency complaint number 1F-953-0002-12, in which she alleged, amongst other things, that her work had been tracked and signed off on and that her locker was opened and her property was left out to be stolen. That complaint is currently pending before an EEOC AJ under EEOC hearing number 550-2012-00286X. As a result, we find the Agency properly dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(1) for raising the same matters that are currently pending before the Commission.1 Claims 3 and 4 The Agency found that Complainant's claims that her supervisor repeatedly referred to her as "he" and that she was scheduled for an investigative interview should be dismissed because the claims are neither severe or pervasive enough to create a hostile work environment. The Agency stated that Complainant did not suffer a harm when her supervisor called her "he", and that being subjected to an investigation without an ultimate employment action does not render an individual aggrieved. After a review of the record, we find that these claims were improperly dismissed. Complainant alleged that these claims of harassment were part of her overall hostile work environment claim, and she requested that the Agency amend these claims with her other claims of harassment that are currently pending before an EEOC AJ in Agency complaint number 1F-953-0002-12, EEOC hearing number 550-2012-00286X. The Agency erroneously addressed these claims individually to determine if the allegations were severe or pervasive enough to constitute a hostile work environment. Instead, the Agency should have amended these like or related claims to Complainant's pending harassment complaint, or if they were raised after the investigation, informed Complainant that she should request that the AJ amend the pending complaint to include these like or related claims. 29 C.F.R. § 1614.106(d); EEO Management Directive (MD)-110, Chap. 5 Sect. III (B). Further, with regard to Complainant's allegation that she was subjected to harassment when her supervisor repeatedly referred to her as "he", we note that supervisors and coworkers should use the name and pronoun of the gender that the employee identifies with in employee records and in communications with and about the employee.2 Intentional misuse of the employee's new name and pronoun may cause harm to the employee, and may constitute sex based discrimination and/or harassment. Finally, with regard to Complainant's allegation that she was harassed when she was subjected to an investigative interview, we note that even if an investigation does not result in an employment action it still may be considered as part of the overall harassment claim. See Ambrose v. Dep't of Transportation, EEOC Appeal No. 0120113178 (Nov. 21, 2012) (Complainant's allegation that she was placed on a performance improvement plan should not have been dismissed for not resulting in an employment action because it was part of a larger claim alleging harassment). Further, with regard to Complainant's claim of retaliatory harassment, 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). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's decision. We affirm the dismissal of Complainant's claims 1 and 2, and we reverse the Agency's dismissal of claims 3 and 4. The Agency is ordered to comply with the order below. ORDER The Agency is directed to submit a copy of the complaint file, including this decision, to the EEOC Hearings Unit of the San Francisco District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall consolidate this complaint with the complaint pending before her in Agency complaint number 1F-953-0002-12, EEOC hearing number 550-2012-00286X, pursuant to 29 C.F.R. § 1614.106(d). 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 May 21, 2013 __________________ Date 1 We note that on appeal Complainant asserts that she was not trying to raise these claims a second time, and that she only provided them as background evidence for her additional claims. 2 See OPM Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, available at http://www.opm.gov/policy-data-oversight/diversity-and-inclusion /reference-materials/gender-identity-guidance/. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120130992 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130992