James T.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

2019002696 (E.E.O.C. Aug. 27, 2019)

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

James T.,1
Complainant,

v.

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

Appeal No. 2019002696

Agency No. 1G-731-0012-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's “February 19, 2018”2 decision, 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk at the Agency’s Oklahoma City Processing and Distribution Center facility in Oklahoma
City, Oklahoma.

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.

2 Although dated February 19, 2018, it is clear the decision was issued on February 19, 2019.
2019002696

2
On May 3, 2018, Complainant contacted an EEO Counselor regarding multiple alleged
discriminatory incidents that occurred between March and May of 2018.3 Complainant averred
that he also requested pre-complaint processing on May 20, 2018 and August 7, 2018.

On November 16, 2018, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race (Asian), national origin (Vietnamese), color,
sex (male), disability (on-the-job injury), age (58), and reprisal for prior protected EEO activity
under Title VII. The Agency characterized his accepted claims, as alleging discrimination, when:

1. On March 18, 2018 through March 31, 2018, Complainant’s request for sick leave
was denied, and his leave was charged to leave without pay;
2. Since March 22, 2018, the Plant Manager denied Complainant’s request to be
provided with eight hours of work, although Complainant was released by his
doctor to return to work, which forced Complainant to unwillingly use four hours
of Leave without Pay (LWOP) each day;
3. On March 31, 2018, Complainant was forced to take early retirement;
4. On or about April 11, 2018, Complainant was threatened with being charged
absent without official leave (AWOL);
5. On or about April 17, 2018, Complainant became aware that management
withdrew funds from his thrift savings plan (TSP), without his authorization;
6. On May 9, 2018, after his retirement, the Agency subjected Complainant to an
investigative interview; and
7. On August 7, 2018, Complainant became aware that the Agency had improperly
reduced his sick leave and annual leave balances.4

The EEO Counselor’s Report shows that Complainant claimed that, on April 20, 2018, the
Agency denied his request for Sick Leave and charged him LWOP. Complainant claimed the
Agency ignored his request for a Leave Adjustment and failed to adjust his leave from March 18,
2018 to March 31, 2018. On April 30, 2018, Complainant claimed that he received an OWCP
waiver form from the Agency which Complainant believed was misleading, because the heading
made it appear that it was an official communication from the EEOC. Complainant claimed, on
or about May 3, 2018, his Redress mediation rights were violated when he was excluded from
mediation. Next, he claimed that the Agency harassed him after he retired, when on May 4,
2018, the Agency issued him a notice compelling him to appear for an investigative interview on
May 9, 2018.

3 The Agency acknowledged that Complainant requested pre-complaint processing multiple
times, the first occurring on May 3, 2018.

4 He claims that the Agency also improperly reduced his leave balance of Annual and Sick Leave
for using over 80 hours from Pay Period 11-13-2016 to Pay Period 03-31-2018.
2019002696

3
On December 3, 2018, the Agency issued a partial dismissal of several of his claims. The
Agency noted that his claims regarding his duty hours in October 2017 were already the subject
of a prior decision, James T. v. United States Postal Service (Southern Area), EEOC Appeal No.
0120181963 (August 17, 2018) (affirming the dismissal regarding duty hour claims that occurred
from October 22, 2017 to December 3, 2017).

The Agency dismissed the allegation that, on or about March 22, 2018, Complainant received
notification that his CA-7, Claim for Compensation forms, submitted to the Department of
Labor, Office of Workers Compensation, were not properly completed for payment. The Agency
reasoned that the approval of workers compensation claims is determined by the Office of
Workers’ Compensation Programs (OWCP), not the EEOC and viewed this claim as a collateral
attack.

The Agency then “consolidated” his claims under a single Agency number, 1G-731-0012-18. On
December 19, 2018, the Agency assigned the complaint to an EEO Investigator.

On January 3, 2019, the EEO Investigator provided Complainant with a PDF word version of the
EEO Investigative Affidavit Questions, which Complainant completed and sent back on January
14, 2019. Complainant asked for extension of the time to submit the rest of his Exhibits.
Included within the information provided by Complainant was his Affidavit of Compensatory
Damages and Exhibits. Complainant stated that he submitted “part of my complete EEO
Investigative Affidavit by Certified Mail.”

Thereafter, the Investigator submitted a report to the Agency, along with Complainant’s
Affidavits and evidence. Complainant asserts that the Investigator’s actions show that he had
completed the EEO Investigations, when the Agency dismissed the complaint.

On February 28, 2019, Complainant received a letter from the Investigator, stating that the
Investigator received information from the National EEO Investigative Services Office
(NEEOISO) that Complainant’s claims had been dismissed and the complaint closed.

On March 1, 2019, Complainant called the Investigator, in the presence of a witness, and asked
the Investigator to send back all of Complainant’s original Affidavit documents. The Investigator
told Complainant that he already had sent all the Affidavit documents to NEEOISO.

Complainant’s representative also asked the investigator to email her, or send the Complainant, a
copy of, the letter he received from the NEEOISO dismissing this case.

Complainant’s documentation revealed the following facts. Complainant was a Mail Processing
Clerk, who worked for 21 years working at the Oklahoma City Processing and Distribution
Center. Complainant is an Asian male, of Vietnamese national origin, and age 58. He identified
his disability as related to his spine and left shoulder. In 2016, Complainant engaged in protected
EEO activities by assisting eight other employees to file EEO complaints. He claimed that,
thereafter, he was reprised against. In addition, he was injured on the job on November 13, 2016.
2019002696

4
This was his first injury on the job. He filed an injury claim. His OWCP claim was approved.

On March 22, 2018, the Plant Manager formally denied Complainant’s request to work eight
hours per day. Others who were similarly situated in his unit, not of his race with no prior
protected activity, were permitted full time work. Despite a clearance from his physician that he
could return to work full time, he alleged that the Agency forced Complainant to unwillingly use
four hours of Leave without Pay (LWOP) each day, 20 hours of LWOP each week, and 80 hours
of LWOP every month from Pay Period 04-08-2017 to Pay Period 03-31-2018 (Exhibit #83).

The Plant Manager told Complainant that there was no work available for him. He recently
learned that he and his wife were the only employees required to take leave each day. He
claimed that this caused him to file this EEO complaint.

Complainant averred that he later learned that he and his wife (who also worked for the Agency)
were the only on-the-job injury employees who were assigned to work four hours a day and not
allowed to work all manual labor jobs. He further alleged that he was then improperly assigned
to work on the Shredder Machine only for four hours a day.

He states that he was eventually forced into early retirement on April 1, 2018, due to direct
threats against him and a continuous environment of retaliation against him. He claimed that this
was due to his race, color, national origin, age and reprisal. He claimed that the Agency’s actions
caused him monetary and emotional harm.

The Agency dismissed claim 1 (denial of sick leave and assignment to LWOP) for untimely EEO
contact and because the Agency found that the matter had not been raised with an EEO
Counselor. The Agency rejected claim 2 (duty hours) as identical to the claim that Complainant
presented in an earlier complaint. The Agency dismissed claims 3, 4, and 6 (forced retirement
and harassment) for failure to state a claim. The Agency reasoned that Complainant voluntarily
retired effective March 31, 2018. The Agency dismissed claims 5 and 7 as a collateral attack on
its debt collection efforts. The Agency reasoned that the proper forum for a complainant to
challenge decisions concerning any debts owed is under the provisions of the Debt Collection
Act.

This appeal followed. On appeal, Complainant contends that he made timely EEO contact
several times from May to August of 2018 and the Agency’s finding otherwise is factually
erroneous. He claims that his claim about the four hours of duty is not identical to his previous
complaint and pertains to a March 22, 2018 denial, which is a different time period and new
claims that he was treated differently than others in his unit who were accommodated He
maintains that his claims have nothing to do with the Debt Collection Act, but rather the
Agency’s deliberate actions which triggered the discriminatory and retaliatory events at issue.

In response, the Agency argues that Complainant’s sick leave claim is untimely since he did not
discuss it with the EEO Counselor and only raised it in his formal complaint filed on November
16, 2018.
2019002696

5
The Agency maintains that his claims fail to state a claim, because he lodged a collateral attack
on the DOL / OWCP process, because the clams pertain to actions that occurred after he retired
“and are dubious.”

ANALYSIS AND FINDINGS

Timeliness of EEO Contact

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the effective date of the action. EEOC regulations also provide that the agency of
the Commission shall extend the time limits when the individual shows that he did not know and
reasonably should not have known that the discrimination occurred.

We find that the 2018 claims were timely raised with the EEO Counselor. The record (the EEO
Alternative Dispute Resolution Specialist’s (ADRS) Inquiry Report) shows that Complainant
made contact with the EEO Counselor on May 3, 2018, regarding incidents that were alleged to
have occurred on March 22, 2018, March 31, 2018, April 11, 2018, April 20, 2018, and in May
of 2018, regarding being called in for an investigative interview, after his retirement. The record
also shows that, on March 22, 2018, the Plant Manager formally denied Complainant’s request to
work eight hours per day. He was told that there was no work available to him. He later learned
that the Agency had available work for others and permitted them to perform the duties full-time.
Therefore, because his contacts occurred within 45 days of when he became aware of the alleged
discrimination, his EEO contacts were timely. The record also confirms that he presented his
claims to the EEO Counselor.

Failure to State a Claim

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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, genetic information, or retaliation. See 29 C.F.R. § 1614.103(a) and § 1614.106(a).

Here, Complainant alleges, among other things, that the Agency discriminated against him based
on his race, color, national origin, age, and reprisal, when, on March 22, 2018, he was not
permitted to work, although he was cleared to return to full duty. Because he did not have eight
hours of assigned work, his salary was cut, and he was not eligible for leave under the Family
Medical Leave Act (FMLA), because he was not allowed to accrue the hours necessary to
receive FMLA. He claims that others, not in his protected groups, were not subjected to a hostile
work environment and the duress that forced him to take early retirement. We find that the
Agency failed to establish that the instant matter was raised in a prior complaint. These claims
are not the same clams that were the subject of prior litigation which dealt with claims arising in
2017.

2019002696

6
Further, the Commission has found that any action by an Agency manager that has the effect of
intimidating or chilling the exercise of those rights under the EEO statutes, constitutes a violation
of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request
No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778
(June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). His
complaint should not have been dismissed. This complaint needs to be investigated and further
processed.

Therefore, a fair reading of the complaint shows that Complainant is alleging that he has been
subjected to an ongoing series of related incidents designed to interfere with his pursuit of his
rights to contest the discrimination and the alleged ongoing hostile work environment. In so
alleging, we find that he has stated a viable claim of being denied the benefits and privileges
provided to other employees, outside of his protected groups, in violation of Title VII, the
ADEA, the Rehabilitation Act, and the anti-retaliation prohibitions.

For all of these reasons, we find Complainant has sufficiently alleged 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). Upon review, the Commission
finds that Complainant's complaint was improperly dismissed.

CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint.
We REMAND the complaint to the Agency for further processing in accordance with this
decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claims within thirty (30) calendar days of the date this decision was issued. 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 was
issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

2019002696

7
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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 tends 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
2019002696

8
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
2019002696

9
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

August 27, 2019
Date