Abraham G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 25, 2016

0120142145 (E.E.O.C. Mar. 25, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Abraham G.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120142145

Agency No. 4F-926-0100-14

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated April 30,
2014, 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. For the
following reasons, the Commission REVERSES the Agency’s final decision.

BACKGROUND

On April 15, 2014, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination in reprisal for prior protected EEO activity when:

On February 27, 2014, Complainant received a back pay check from an
arbitration award and management had withheld the check for over a month and
the Agency had subtracted $1,710 from the award.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency determined Complainant was alleging dissatisfaction with
the execution of the arbitration decision concerning back pay. The Agency found Complainant
was seeking collateral enforcement of an Arbitration Award through the EEO process, which it
stated was outside the jurisdiction of the Commission. The Agency noted that the proper forum
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.

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for Complainant to have raised his challenges to actions which occurred during the arbitration
proceeding was at that proceeding itself.

On appeal, Complainant states he is not claiming dissatisfaction with the execution of the
arbitration decision concerning his back pay. Rather, Complainant states that he has an issue
with Agency receiving his back pay check on January 20, 2014, and not releasing the check
until February 27, 2014, in retaliation for his prior EEO activity. Complainant also states the
Agency did not give a reason for deducting $1,710 from award.

In response to Complainant’s appeal, the Agency reiterates that the proper forum for
Complainant to raise a challenge in relation to enforcement of an arbitration decision is through
the forum itself, not in the EEO process. In addition, the Agency notes the statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected activity. The Agency
states it does not believe that the incidents Complainant is complaining of are likely to deter
protected activity.

ANALYSIS AND FINDINGS

The regulation set forth at 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. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Regarding complainant’s claim of reprisal, 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) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a
retaliatory motive and is reasonably likely to deter the charging party or others from engaging
in protected activity. Id.

The Agency asserted that the complaint constituted a collateral attack on the arbitration
process. The Commission has held that an employee cannot use the EEO complaint process to
lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585
(Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).

In the present case, Complainant indicated that the Agency intentionally held up his back pay
check and deducted an addition $1,700 from his back pay. He claimed that the Agency’s

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actions were intentionally done by the Agency in retaliation for his prior EEO activity. We
find that such an allegation of retaliation states a claim and does not constitute a collateral
attack. See Evans v. United States Postal Serv., EEOC Appeal No. 0120123440 (Feb. 12,
2013). Furthermore, we find that such an Agency action could reasonably deter protected
activity. Accordingly, we determine that the Agency’s dismissal of the matter was not
appropriate.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED
and the complaint is REMANDED to the Agency for further processing in accordance with the
Order herein.

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)

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(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

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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

March 25, 2016
Date