0120150533
08-04-2016
Iris D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iris D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120150533
Hearing No. 471-2013-00044X
Agency No. 1J-483-0042-12
DECISION
Complainant timely filed an appeal from the Agency's October 24, 2014, final order concerning her equal employment opportunity (EEO) class complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the matter to the Agency for further processing.
ISSUE PRESENTED
The issue presented is whether the class complaint, alleging that the Agency discriminated against Mail Handlers when it told them that their seniority would be reduced if they voluntarily transferred to a different facility, was properly dismissed for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Detroit Priority Mail Center (PMC) in Michigan. The PMC and the Detroit Processing and Distribution Center were part of the Detroit Bid Cluster.
In 2012, the Agency decided to close the PMC and transfer the priority mail from the PMC to the Detroit Network Distribution Center (NDC). As a result, junior employees would be involuntarily reassigned to the NDC unless more senior employees from the Detroit Bid Cluster volunteered to transfer to the NDC in lieu of the more junior employees. This voluntary transfer was called a senior option and was provided to Mail Handlers and Clerks. On June 15, 2012, the Agency posted senior option notices describing the process. The senior option notice for the Mail Handlers stated that those who elected to exercise the option would have their Mail Handler seniority reduced. The senior option notice for the Clerks stated that those who elected to exercise the option would retain their current Clerk seniority. Complainant elected to exercise the senior option, voluntarily transferred to the NDC, and had her seniority reduced.
On January 3, 2013, Complainant filed a class complaint alleging disparate treatment discrimination by the Agency against 40 Mail Handlers from the PMC on the basis of age (at least 40) when it told them that their seniority would be reduced if they voluntarily transferred to the NDC. Subsequently, Complainant alleged the additional bases of race (non-Caucasian) and disability (any individual with a hearing impairment).
On October 15, 2014, an Equal Employment Opportunity Commission Administrative Judge (AJ) issued a decision dismissing the class complaint. First, the AJ dismissed the class complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the AJ found that Complainant was alleging that the Agency treated employees in the Mail Handler craft differently than employees in the Clerk craft with respect to the senior option by allowing the former to retain their seniority while forcing the latter to reduce their seniority. In addition, the AJ found that Complainant's allegation was a generalized grievance that employees in one unit or job category (Mail Handlers) were not granted the same employment benefits as compared to other employees in another unit or job category (Clerks). Second, the AJ dismissed the class complaint for not meeting the prerequisites under 29 C.F.R. � 1614.204(a)(2).
The Agency issued a final order implementing the AJ's decision to dismiss the class complaint and informing Complainant that the complaint was also dismissed as an individual complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Complainant then filed the instant appeal.
On appeal, Complainant argues that the Agency discriminated against the Mail Handlers from the PMC on the basis of age by not allowing them to go to the NDC without losing their seniority. Moreover, Complainant argues that the complaint meets the prerequisites for class certification. In opposition to Complainant's appeal, the Agency reiterates that Complainant's class complaint fails to state a claim and does not meet the prerequisites for class certification.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.204(d)(2) provides that an AJ may dismiss a class complaint for any of the reasons listed in � 1614.107 or because it does not meet the prerequisites of a class complaint under � 1614.204(a)(2).
Our regulations provide that a complaint shall be accepted 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, disability, or genetic information. 29 C.F.R. �� 1614.103, 1614.106(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). When the complainant does not allege that he or she is aggrieved within the meaning of the regulations, the complaint shall be dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Upon review of the record, we find that the class complaint was improperly dismissed for failure to state a claim. A fair reading of the record indicates that Complainant was alleging that the Agency treated the Mail Handlers less favorably than the Clerks, not because of their Mail Handler status, but because of their age, race, and disability status. Specifically, in her pre-complaint counseling form, formal complaint, and deposition testimony, Complainant stated her belief that the Agency's actions were based on age, race, and/or disability. Therefore, Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz, EEOC Request No. 05931049.
We note, however, that there is limited information in the record relevant to the issue of certification. For example, there is no documentary evidence in the record showing the composition (age, race, and disability status) of the Mail Handlers versus the Clerks from the PMC during the relevant time period. Moreover, when asked about the composition of the two groups during her deposition, Complainant provided some information but seemed unsure of the exact numbers.
Accordingly, we remand the class complaint back to the AJ to allow for further discovery so that Complainant and the Agency may submit additional information relevant to the issue of certification. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 8, � IV.B (Aug. 5, 2015).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND the class complaint in accordance with the Order below.
ORDER
The Agency shall take the following action:
1. Within 30 calendar days from the date this decision becomes final, the Agency shall forward the entire record to the Hearings Unit of the Detroit Field Office. In its transmittal letter, the Agency shall request that an AJ be assigned for the purpose of undertaking additional discovery to obtain information currently absent from the record including, but not limited to, the composition (age, race, and disability status) of the Mail Handlers versus the Clerks from the PMC during the relevant time period. The transmittal letter will also request that the AJ render a decision on the issue of class certification, pursuant to 29 C.F.R. � 1614.204, upon completion of this discovery phase.
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 (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
__8/4/16________________
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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