A City Letter Carrier at the Woonsocket, Rhode Island Post Office alleged that he was subjected to retaliatory harassment for his prior protected EEO activity. The Carrier alleged that his pay was deliberately short and pay records manipulated. The Postal Service dismissed the EEO complaint for failure to state a claim. The EEOC found that the Carrier clearly alleged that immediately after he told the postmaster he was going to file an EEO complaint about the pay issues, the postmaster engaged in campaign of ongoing harassment, threatened discipline, revoked a grievance settlement to remove a letter of warning from his record, and made numerous intimidating and insulting comments. The EEOC concluded that the letter carrier set forth “an actionable claim of retaliatory harassment and remanded the case.”  Beauregard v. Potter (2/14/2009)

Excerpts from the case:

Background 

At the time of the events at issue, complainant was employed by the agency as a City Carrier at the Woonsocket, Rhode Island Post Office. In a formal EEO complaint dated September 2, 2008, complainant alleged that he was subjected to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. The agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) and (2), for failure to state a claim and/or untimely EEO counselor contact. The instant appeal followed.

In its dismissal decision, the agency characterized the complaint as asserting unlawful retaliation “when on or about May 10, 2008, [complainant] believed [his] pay was deliberately short and pay records were manipulated.” The agency reasoned that this failed to state a claim because complainant ultimately received the correct pay and benefits in 2007 through the grievance process, and because there was no indication that complainant had engaged in prior protected activity. In the alternative, the agency dismissed for untimely EEO counselor contact, asserting that complainant’s initial contact with the counselor was on July 1, 2008, beyond the regulatory 45-day period from May 10, 2008.

Upon review, the Commission concludes that the agency incorrectly characterized the complaint in this matter, therefore applying its dismissal analysis incorrectly. A fair reading of the complaint, in conjunction with the EEO Dispute Resolution Specialist’s (EEO counselor’s) report reveals that in fact complainant was alleging after he told the Postmaster on July 1, 2008, that he intended to file an EEO complaint concerning the paycheck tampering issue, he was subjected to ongoing retaliatory harassment. The EEO counselor’s report details the alleged harassment to include: on July 1, 2008, the Postmaster questioned complainant about the use of unauthorized overtime; on July 2, 2008, the Postmaster discussed complainant’s street time, performed street supervision, and conducted a road observation; on July 3, 2009, the Postmaster notified complainant that a Letter of Warning dated April 29, 2008, would remain in his personnel file for two years despite an earlier grievance settlement that it would be removed after three months; on July 8, 2008, he was given a pre-disciplinary interview regarding the use of directional signals on July 2, 2008; and the Postmaster made a number of negative comments to him, including, “Are you afraid of me?”, “You’re not man enough to come any closer and get the chock block from me”, “I think you are nothing but a piece of s*** and think you are a liar”, and “It’s just a matter of time before you won’t be getting a paycheck.” Shortly thereafter complainant was out of work for on sick leave (FMLA) from July 10 – August 15, 2008.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. In applying this standard, we find that complainant has set forth an actionable claim of retaliatory harassment. The EEO counselor’s report reveals that he clearly alleged that immediately after he told the Postmaster he was going to file an EEO complaint about the pay issues, the Postmaster engaged in campaign of ongoing harassment, threatened discipline, revoked a grievance settlement to remove a letter of warning from his record, and made numerous intimidating and insulting comments. Together this is sufficient to state a claim of retaliatory harassment/hostile work environment that was timely raised.

To the extent complainant was also attempting to raise his pay claims in this complaint, we agree with the agency that these were untimely raised as the most recent occurrence, on May 10, 2008, was more than 45 days before complainant’s initial EEO counselor contact. This untimeliness would not be a basis for dismissal if the paycheck issues were part of the alleged pattern of harassment as the Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. However, in this case we do not find that the pay issues are linked to the harassment, as the protected activity (telling the Postmaster he was going to file an EEO complaint about the pay issues) occurred after May 10 and involved a different management official. To this extent, we affirm the agency’s dismissal of the pay issues (occurring May 10, 2008 and earlier) as untimely raised.

Accordingly, we REVERSE the agency’s dismissal of the complaint and REMAND it to the agency for further processing in accordance with the following Order.

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