Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120113964 (E.E.O.C. Jun. 14, 2013)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120113964

Agency No. 4B-070-0180-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
August 1, 2011, dismissing 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.
Upon review, the Commission finds that Complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health and
Resource Management Specialist at the Agency’s Northern New Jersey District Office in
Newark, New Jersey. On July 11, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of race (African-American) and in
reprisal for prior protected EEO activity when, on June 2, 2011, she received a Specific Notice
of Reduction-in-Force (RIF) notifying her that she would be separated from the Agency
effective September 9, 2011.

On August 1, 2011, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(5) for raising a proposed action. The Agency reasoned that because the
notice did not go in effect until September 9, 2011, Complainant could not currently show
harm with respect to a term, condition, or privilege of employment. The instant appeal
followed.

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CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was removed from her job under the guise of a RIF
while a Caucasian woman with less experience was selected to remain in the department.
Complainant states that she waited without a job for several weeks before being placed in a
Human Resources Specialist position with different hours and less independence. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.

ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that an agency shall dismiss any
portion of a complaint that alleges that a proposal to take a personnel action or other
preliminary step to taking a personnel action, is discriminatory. The Agency dismissed
Complainant’s claim on the basis that the RIF notice was a proposed personnel action. On
appeal, Complainant contends that she was removed from her position while a co-worker with
less experience was allowed to remain in the department. Accordingly, the Commission finds
no support for the Agency's contention that the RIF notice was only a preliminary step rather
than an effectuated adverse personnel action.

In addition, the Commission has a policy of considering reprisal claims with a broad view of
coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000).
Under Commission policy, claimed 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 Section 8, “Retaliation,” No. 915.003 (May 20. 1998), at 8-15;
see also Carroll.

Applying the above-described legal principles, the Commission finds that Complainant has
alleged that she suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Consequently, the Commission finds that
Complainant has set forth an actionable claim of discrimination and reprisal that requires
investigation and further processing. See Diaz v. Dep't of the Air Force, EEOC Request No.
05931049 (Apr. 21, 1994).

CONCLUSION

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.

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ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim 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

(M0610)
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:

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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 9-18 (Nov. 9, 1999). 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
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denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 14, 2013
Date