U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alisa M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120160750 Agency No. 4E800012115 DECISION Complainant timely appealed to this Commission from the Agency's October 29, 2015 decision to dismiss 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 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 SVCS/Distribution Associate Clerk (SSDA) at the Agency's Fort Carson Branch facility in Colorado Springs, Colorado. On October 8, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (White), sex (Female), disability (Physical), and reprisal for prior and ongoing protected EEO activity under Title VII and the Rehabilitation Act when: on May 15, 2015, Complainant became aware that a printout of an email between two of her managers, referencing her EEO activity and alleging she made false allegations, had been left at her workstation, in plain view of her coworkers and customers. In pertinent part the email provides: "[Complainant's Full Name] filed an EEO based on sex, age, FMLA disability protection (she has 20 un-scheduled absences)...I am not sure of the impact and whether she will continue calling in and making false accusations which nobody cares to address." Complainant named the manager who sent the email in another EEO complaint (Agency No. 4E-800-0121-15), which was still pending Agency review on the date of the alleged discriminatory act. The record is unclear about how the printed email arrived in complainant's workspace. The Agency dismissed the complaint for failure to state a claim, pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency determined that Complainant failed to establish that she was an "aggrieved" employee because "she did not indicate how she was harmed by seeing the email that was left at her work station area." We disagree. Complainant referenced her concern for her privacy, describing the email printout as on view "for all to see." We also note that certain Agency actions, discussed below, do not require a finding of harm. 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. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998) When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a per se violation. See e.g. Ashby v. Dep't of the Treasury, EEOC Appeal No. 0120090364 (February 27, 2012), request for reconsideration denied, EEOC Request No. 0520120435 (July 12, 2012) (Complainant's supervisor mentioned Complainant's prior EEO activity to another colleague and made inappropriate comments about Complainant's EEO complaints constituted a per se violation of Title VII); Kessel v. Dep't of Commerce, EEOC Appeal No. 0120070702 (March 19, 2009), request for reconsideration denied, EEOC Request No. 0520090381 (June 17, 2009). (finding where Complainant's supervisor asked her if she realized what a serious thing she had done by filing an EEO complaint and warned her that she would be considered a troublemaker if she proceeded had a chilling effect of the EEO process and such comments were reasonably likely to deter complainant from pursuing her EEO claims) We have previously found that agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. §1614.102(5); Binseel, supra; Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) The email message on its face, in the context of being placed on public view, could be found reasonably likely to deter EEO activity. Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and 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 (1) the Agency's letter of acknowledgment referencing this Decision, the claims to investigate (as stated in the Decision) and Complainant's rights; (2) the transmittal/cover letter with notice of election rights that accompanies Complainant's file; (3) either the Final Agency Decision ("FAD") in its entirety with appeal rights or Complainant's signed hearing request and the transmittal letter accompanying Complainant's file for a hearing; and (4) a copy of the final report concerning the Agency's inquiry referenced in its February 11, 2016 letter to the Commission must be included in the Compliance Report 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, Director Office of Federal Operations March 10, 2016 __________________ 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 0120160750 5 0120160750