Damion L,,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 13, 2016

0120141579 (E.E.O.C. Apr. 13, 2016)

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

Damion L,,1
Complainant,

v.

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

Appeal No. 0120141579

Agency No. 1K271000114

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
February 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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 Mail Handler
Equipment Operator at the Agency’s Greensboro Processing and Distribution Center in
Greensboro, North Carolina. In October, 2013, Complainant contacted an Equal Employment
Opportunity Counselor to complain about what he regarded as a discriminatory change in his
work duties. The change in duties was described in the Counselor’s Report as follows:

Counselee stated that he was moved to the Forklift Line where,
after 04:30 he has to get off his forklift and manually unload
trucks. Counselee stated he has been placed in a job that is going
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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to injure him because of all of the manual labor he is now
required to perform.

On February 1, 2014, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American), sex (male), and age (over 40)
when he was moved from his job assignment operating forklifts to a more physically
demanding assignment requiring manual labor. The complaint alleges that performing this
manual labor has caused Complainant to suffer pain in his shoulder that has required treatment
by a physician.

On February 26, 2014, the Agency issued a final decision dismissing the complaint pursuant to
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim on the ground that a change in
assignments did not constitute an adverse action or a denial of an entitlement with respect to a
term, condition or privilege of employment. From that final order Complainant brings the
instant appeal.

ANALYSIS AND FINDINGS

Complainant has shown an injury or harm to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049
(April 21, 1994). The Agency cites Eason v. USPS, EEOC Appeal No. 0120082626 (August
20, 2008) for the proposition that “an employee being assigned to work outside their [sic] bid
assignment fails to state a claim.” Agency Appeal Statement at 2. The Agency’s reliance on
Eason is misplaced. In Greenstein v. USPS, EEOC Request No. 0520110467 (November 14,
2011) the Commission held that a change in a letter carrier’s assigned method of delivering
mail from vehicle assisted to non-vehicle assisted constituted a harm to the carrier’s terms of
employment sufficient to state a claim of discrimination. The Commission noted that the
carrier found it physically difficult to deliver the new route which required carrying a heavy
satchel of mail and that he suffered back injuries as a result. See also, Percy K. v. USPS,
EEOC Request No. 0520120403 (April 7, 2012).

The instant case is factually close to Greenstein. Complainant has had his duties changed from
working with a forklift to working unaided by any machinery. In addition, Complainant
alleges that the increased physical demands of the new assignment have caused him pain
serious enough to require treatment by a physician. Under the authority of Greenstein, these
allegations are sufficient to state a claim of discrimination.

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
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:

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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 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

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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

April 13, 2016
Date