0120152430
01-14-2016
Jeramy H.,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
Jeramy H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120152430
Agency No. 1J-484-0008-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 24, 2015, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's Detroit Network Distribution Center in Allen Park, Michigan.
On March 1, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On June 9, 2015, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Hispanic) and sex (male). In its final decision, the Agency defined Complainant's claims as follows:
1. from 2009 to January 22, 2015, he was not paid "out-of-schedule" pay for working on the days that under his bid position should have been his non-scheduled days off (Monday/Tuesday), but that management unilaterally changed to work days while providing him with other days off (Friday/Saturday); and
2. on January 22, 2015, management told Complainant that, as a result of a grievance settlement of December 11, 2014, his days off had been improperly changed from his bid position and he was to revert to his bid schedule with Monday/Tuesday off. As a result, Complainant requested out-of-schedule pay for the entire period he was improperly denied his bid schedule, but the Agency denied his request.
In its June 24, 2015 final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on March 1, 2015, which was more than forty-five days after the alleged discriminatory events occurred. The Agency further stated that EEO Poster 72 was on display at the facility where Complainant worked, addressing the counseling period, and informing employees to contact the Agency's EEO office if interested initiating EEO Counselor contact. Furthermore, the Agency stated that Complainant was familiar with the 45-day limitation period because he had engaged in prior protected activity.
The Agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that the subject claim is a collateral attack on the negotiated grievance process. The Agency stated that Complainant should have raised such matters through the negotiated grievance process, and not through the EEO complaint process.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
As an initial matter, we find that a fair reading of the complaint in this case, as well as the related EEO counseling report and statement on appeal, shows that the Agency improperly defined Complainant's claim. We determine that the essence of his claim is that he was discriminatorily denied retroactive out-of-schedule pay for the improper management change in his bid schedule from 2009 through January 22, 2015, when he was returned to his proper bid schedule. The Agency dismissal shall be reviewed using this definition of the claim.
According to Complainant, as the result of a grievance filed by other affected employees, management told Complainant on January 22, 2015, that his bid schedule had been improperly changed since 2009, and it was being changed back so that his days off were those he originally had when he first bid on the position. We are persuaded by Complainant's claim on appeal that January 22, 2015, was the first time he knew that management should not have unilaterally changed his bid schedule. As a result, on or around January 22, 2015, Complainant requested and was denied out-of-schedule pay for the approximately four years he had been required to work the improper schedule. Complainant claimed he was treated differently than other affected employees who he claims received retroactive out-of schedule pay.
It is undisputed that Complainant initiated EEO counseling on the matter on March 1, 2015, forty-two (42) days after he learned his bid schedule had been improperly changed and his resulting request for out-of schedule pay was denied. As this was within the 45-day limitation period for seeking counseling, we find the Agency erred in dismissing the complaint for untimely EEO counselor contact.
The Agency also dismissed the complaint as a collateral attack on the negotiated grievance process. While not altogether clear, this argument seems to address Complainant's claim that other similarly situated employees received out-of-schedule pay for the same improper change in their bid schedule, while he did not. To the extent that the Agency's explanation for any difference in treatment is because of a grievance settlement agreement, that addresses the merits of Complainant's claim without a proper investigation as required by regulation. We find that the Agency's articulated reason for the action in dispute - that other employees may have received out-of-schedule pay as a result of a grievance settlement - goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, the Agency's final decision dismissing the complaint is REVERSED and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (denial of out-of schedule pay) in accordance with 29 C.F.R. � 1614.108 et seq. 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:
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 (November 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 (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
January 14, 2016
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152430
3
0120152430
7
0120152430