U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carl Y.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120162557 Agency No. 1K-271-0029-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 30, 2016, dismissing his 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 During the period at issue, Complainant worked as a Mailhandler Equipment Operator at the Agency's Processing and Distribution Center facility in Greensboro, North Carolina. On June 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), age (49), and reprisal for prior protected EEO activities: 1. On March 7, March 21, 2016, and ongoing, management instructed Complainant not to use a certain type of PIT (powered industrial truck or forklift) equipment to unload drop shipments pallets; 2. On unspecified dates, including March 7 and 21, 2016, Complainant's manager has monitored him performing his duties and his whereabouts when missing from his assignment; and, 3. On unspecified dates, Complainant was not included in the rotational job assignment. On June 30, 2016, the Agency issued a final decision dismissing the complaint for failure to state a claim. In its final dismissal decision, the Agency wrote that Complainant had not suffered harm that it considered "a tangible personal loss" related to employment or a term, condition or privilege thereof. The instant appeal followed. On appeal, Complainant included a pro se brief, titled in bold and caps: "COMPLAINANT'S OBJECTION TO THE AGENCY DISMISSAL OF FORMAL COMPLAINT." Complainant's appellate brief disputed the Agency's characterization of events and accused the Agency of protecting management by ignoring the retaliation component in his formal complaint.2 The Agency responded to Complainant's arguments on appeal by reasserting its position that Complainant lacked sufficient evidence to meet the definition of an aggrieved employee. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). With respect to Complainant's retaliation allegation, the Agency concluded that "the incidents of which [Complainant] complained are not likely to deter the appellant or others from engaging in protected activity."3 ANALYSIS AND FINDINGS Upon review, we find that the Agency improperly dismissed Complainant's complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). The above-mentioned EEOC regulation, provides that an agency shall dismiss a complaint that fails to state a claim under 29 C.F.R § 1614.103 or § 1614.106(a). Even if a complainant does not challenge an agency action or inaction regarding a specific, term, condition or privilege of employment, then a claim of harassment is still actionable where the harassment to which a complainant has allegedly been subjected was sufficiently severe or pervasive to alter the conditions of his or her employment. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that a complainant cannot prove a set of facts in support of the claim which would entitle him or her to relief. The trier of fact must consider all of the alleged harassing incidents and remarks together in the light most favorable to a complainant in order to determine whether they are sufficient to state a claim. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997); Miller v. Dep't of the Treasury, EEOC Request No. 05A10333, (Aug. 15, 2002). In certain situations, an agency action that alone might not state a claim nevertheless becomes sufficient when viewed as one incident in an alleged pattern of harassment in conjunction with other claims. Cobb, supra. Here, a fair reading of the record shows that Complainant has described a pattern of harassment that started in early March 2016 and continued thereafter. According to Complainant, he had participated in prior EEO complaints about his immediate management; those same managers in turn, micromanaged him and pressured him to speed-up such that Complainant believed his direct supervisors were singling him out among his peers. Complainant recalled one instant when a supervisor cursed at him under her breath, words to the effect of: "Not this s--- again!" Complainant accused another supervisor "constantly demeaning" him and calling attention to his authorized temporary absences for bathroom breaks and lunch breaks. Furthermore, Complainant observed that he had been suddenly excluded from rotational job assignments that he had usually been assigned in the past. To the extent Claimant alleged harassment in reprisal, our policy demands that we consider reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). As such, 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 No. 915.003, (May 20, 1998), at 8-15; see also Carroll, supra. The Agency's final dismissal diminished the tangibility of the series of events as described by Complainant. However, Title VII is not limited to economic or tangible discrimination. At this point, we need not decide the merits of the Complainant's complaint, for it is sufficient that Complainant has stated a cognizable claim alleging a pattern of harassment under EEOC regulations. Cervantes v. U.S. Postal Svc., EEOC Request No. 05930303 (Nov. 12, 1993). 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 ORDERS below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If 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 Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 (M0416) The Commission may, in its discretion, reconsider the decision in this case if 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 December 29, 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 We note that the formal complaint included an "Attachment B-1" wherein Complainant listed internal Agency case numbers of four EEO actions in which Complainant had participated between 2014 and 2015. Also, Complainant professed that he had a reputation as the "Greensboro district EEO Man." Whereas, the EEO Counselor reported that there was "no prior EEO activity" that was relevant to Complainant's retaliation complaint. 3 See Agency response letter dated September 19, 2016, at 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162557