EEOC Appeal No. 0120160120
02-18-2016
Clinton R. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120160120
Agency No. 1C374001515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision (FAD) dated August 17, 2015, dismissing his complaint of unlawful reprisal in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds that the complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Therefore, the Agency's FAD is REVERSED, and the complaint is REMANDED.
ISSUE PRESENTED
Whether a Complainant states a claim for reprisal when alleging that he was ordered to perform janitorial duties outside the scope of his employment as a result of prior protected EEO activity.
BACKGROUND
Complainant worked as a Maintenance Supervisor at the Agency's Network Distribution Center in Memphis, Tennessee. See DRS Inquiry Report. On July 31, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity. See Compl. Complainant alleged that the acting manager of the facility ordered Complainant to get on his hands and knees to clean an elevator. Id. Complainant told the manager that another employee had cleaned the elevator the day before and was arriving to clean it again in twenty minutes. Id.; see also, Information for Pre-Compl. Counseling. Complainant noted that the order was against Agency/union policy and that other supervisors had never been ordered to perform similar tasks. See Complainant's Appl.; Complainant's Nov. 17, 2015 Statement. Complainant claims that the order came as retaliation for prior statements and participation in another employee's EEO case involving disability discrimination-the acting manager was a "major part" of this case and Complainant gave unfavorable statements during the investigation. Complainant's Sept. 18, 2015 Statement.
On August 17, 2015, the Agency issued a final decision dismissing the complaint. The Agency held that Complainant failed to state a claim for reprisal, finding that Complainant was not "aggrieved" because he did not suffer a loss of a term, condition, or privilege employment, and that the totality of the circumstances was "neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment." Dismissal of Formal EEO Compl., at 2.
CONTENTIONS ON APPEAL
Complainant contends that the order to clean came as retaliation for prior protected EEO activity. Complainant also asserts that the Manager changed the terms and conditions of employment when he required Complainant to undertake a task that went against Agency policy.
ANALYSIS AND FINDINGS
No person shall be subject to retaliation for opposing any practice made unlawful by the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings. 29 C.F.R. � 1614.101(b).
Persons aggrieved by reprisal need not suffer a loss of any term, condition, or privilege of employment; further, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. Carroll v. Dep't of Army, EEOC Request No. 05970939 (April 4, 2000); see also Zoila P. v. Dep't of Justice (Exec. Office of the U.S. Attorneys), EEOC Appeal No. 0720130036 (Nov. 24, 2015) (citing Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006)). Complainant alleged that a manager ordered him to take on a menial task, getting on his hands and knees. Complainant also claims that this order came as retaliation his prior protected activity. The Commission, therefore, concludes that Complainant claimed facts which could conceivably constitute discriminatory reprisal.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is 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 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) (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
2-18-16
__________________
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.
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