0120070679_R___3
02-24-2009
John F. Reider, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
John F. Reider,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120070679
Hearing No. 340-2005-00603X
Agency No. 4F-920-0118-02
DECISION
On November 6, 2006, complainant filed an appeal from the agency's
September 26, 2006, final order concerning his equal employment
opportunity (EEO) 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., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq, and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission AFFIRMS in part and REVERSES in part the agency's final order.
BACKGROUND
The record reflects that on October 25, 2001, complainant and the agency
entered into a settlement agreement resolving issues related to several
EEO complaints previously filed by complainant. The settlement agreement
provided, in pertinent part, that:
* The complainant's duty hours will be from 8:00 am - 4:30 pm. Off days
will be Sunday and Monday.
* Lunch 1/2 hour
* The complainant's position will be Modified City Letter Carrier and
will include the following duties within your limitations:
1) Delivery of Express Mail
2) Registry duties to include checking in carriers
3) Casing letters and flats
* Other duties may be assigned as necessary within your medical
restrictions
* The complainant will be compensated a lump sum payment of $3600.00
(less applicable deductions)
On March 25, 2003, complainant filed the instant EEO complaint. Therein,
complainant claimed that he was harassed and retaliated against on the
bases of disability (back, right foot), age (42), and in reprisal for
prior protected activity when:
(1) On an unspecified date, he was isolated and branded as a "problem
employee;"
(2) On unspecified dates, he was denied union representation;
(3) On March 8, 2002, he was subjected to an improper investigative
interview;
(4) On or about March 23, 2002, his removal from his previously assigned
duties contributed to his back injury;
(5) On October 10, 2002 USPS Labor Relations provided unauthorized
documents to the union in retaliatory and disciplinary union proceedings
against him;
(6) On or about November 7, 2002, management unilaterally withdrew from
an unspecified mediation;
(7) On an unspecified date, he agreed to withdraw a pending EEO
pre-complaint after management agreed to rescind 2 Letter of Warnings
(LOWs), and the LOWs were accompanied by other unspecified retaliatory
actions;
(8) On January 16, 2002, he was set up by management as a pretext to
remove him from checking in/out carriers; and
(9) On February 28, 2002 and March 2, 2002, he was set up by management
as a pretext to remove him from delivering Express Mail.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and a notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing.
The AJ assigned to the case determined sua sponte that the complaint did
not warrant a hearing and issued a Dismissal Order on September 7, 2006.
The AJ dismissed claim (5) for failure to state a claim. The AJ dismissed
the remaining claims after determining that complainant's true complaint
was that the agency had breached its obligations under the October 25,
2001 settlement agreement and that complainant had improperly raised
these allegations as discrimination claims.1 The agency subsequently
issued a final order fully adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in viewing his allegations
as breach of settlement claims. Complainant insists that he has properly
raised a claim of harassment. In response, the agency maintains that
the AJ's decision is correct and urges the Commission to affirm its
final decision.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (Nov. 9, 1999)
(providing that an AJ's "decision to issue a decision without a hearing
pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo").
Claims (8) and (9)
Upon review of the settlement agreement, we agree with the AJ that claims
(8) and (9) address a breach of settlement. Complainant himself asserts
in his affidavit that the agency breached its obligation to have him
deliver Express Mail delivery and check in carriers. Complainant does not
dispute the AJ's conclusion as to these claims. Furthermore, complainant
filed a breach claim with the agency after the agency dismissed these
claims in its Partial Acceptance/Dismissal. Accordingly, we concur with
the AJ's dismissal of claims (8) and (9). See 29 C.F.R. � 1614.504(a).
Claims (2), (5), (6), and (7)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint 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 or disabling condition. 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With respect to retaliation, claims that can be challenged are not
restricted to those which affect a term, condition, or privilege
of employment. See EEOC Compliance Manual Section 8, "Retaliation;"
No. 915.003, at 8-15 (May 20, 1998). Instead, a complainant is protected
from any discrimination which is reasonably likely to deter protected
EEO activity. Burlington N. and Sante Fe Ry Co. v. White, 548 U.S. 53
(2006).
Upon review, we find that claim (2) should have been dismissed for
failure to state a claim rather than for alleging a breach of settlement
because it constituted a collateral attack on the grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for complainant
to raise his claim that he was denied union representative is within
the negotiated grievance process.
We find that the AJ properly dismissed claim (5) for failure to state
a claim. Even if we assume that the agency did in fact improperly
disclose the documents as alleged in claim (5), complainant has not
shown how this disclosure caused him to be an "aggrieved employee" and
to "suffer a direct and personal deprivation." Gilyard v. Department
of Energy, Appeal No. 01A01550 (June 9, 2003). Similarly, we find
that claims (6) and (7) fail to state actionable claims under our
regulations. With respect to claim (6), even if we assume that the
agency unilaterally withdrew from mediation proceedings, either party
is entitled to withdraw from mediation at any time as it is a voluntary
dispute resolution process. Regarding claim (7), complainant in essence
alleges that the agency engaged in wrongdoing when it agreed to rescind
two LOWs in exchange for him to cease pursuing an EEO complaint.
We find this fails to state a claim because such exchanges are the
whole purpose of settlement agreements.2 The agency agrees to resolve
a dispute by taking on affirmative obligation in complainant's favor in
exchange for complainant voluntarily agreeing to cease pursuing a claim.
We find nothing in the agency's actions that have aggrieved complainant.
Moreover, we do not find that the agency's actions in these claims are
reasonably likely to deter protected EEO activity. Therefore, we affirm
the dismissal of claims (2), (5), (6), and (7).
Claims (1), (3) and (4)
With respect to complainant's remaining claims, we find that the AJ erred
in concluding that claims (1), (3), and (4) raised breach of settlement
claims. We concur with complainant's contention that these allegations
are more properly framed as a single harassment claim. Although we agree
with the agency and the AJ that complainant's claims and affidavit are
confusing, we nevertheless understand complainant to be claiming, in
pertinent part, that after management breached its affirmative obligations
pursuant to the October 25, 2001 settlement agreement, officials subjected
complainant to harassment by assigning him duties that isolated him
from his colleagues, "imposed gag orders" that prohibited him from
communicating with other employees, and required him to complete tasks
that re-aggravated his on-the-job injuries. Complainant further alleges
that management subjected him to an unwarranted investigative interview as
a means of intimidation in which he was branded as a "problem employee."
Viewing these allegations together, we find that claims (1), (3), and
(4) state an actionable claim of harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997); Burlington,
548 U.S. at 64-68 (finding that Title VII's anti-retaliation provision is
not limited to discriminatory actions that affect the term or conditions
of employment; a complainant is protected from discrimination actions
that are reasonably likely to deter protected activity).
It appears that both the AJ and the agency viewed these allegations
as multiple settlement breach claims because the allegations arose
out of an alleged breach. However, the fact that the incidents are
directly tied to a breach does not necessarily make them part of the
breach claim. Our regulations state that "[a]llegations that subsequent
acts of discrimination violate a settlement agreement shall be processed
as separate complaints under � 1614.106 or � 1614.204." 29 C.F.R. �
1614.504(c) (emphasis added). Therefore, a perceived discriminatory
incident taking place following an alleged violation of a settlement
agreement does not necessarily make the incident part of the breach claim.
To follow that logic would mean that complainant may never be able to
raise a discrimination claim with respect to an adverse employment action
that occurred soon after a related settlement violation. We do not apply
our regulations so narrowly. Moreover, complainant should not fear that
his rights are curbed because he enters into a settlement agreement.
On the contrary, we encourage parties to enter into such agreements
as a means of resolving disputes. Accordingly, we remand claims (1),
(3), and (4) for further processing as a single harassment claim in
accordance with the Order below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
dismissal of claims (2), (5), (6), (7), (8), and (9). We REVERSE the
agency's dismissal of claims (1), (3), and (4). The allegations in claims
(1), (3), and (4) comprise a single harassment claim, and we REMAND the
harassment claim to the Hearings Unit for processing consistent with
this decision and the ORDER below.
ORDER
With regard to the matters rasied in claims (1), (3), and (4), the
agency shall submit to the Hearings Unit of the Los Angeles District
Office a copy of the complaint file within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the remanded harassment
claim in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 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
February 24, 2009
Date
1 We note that on May 23, 2003, the agency issued a Partial
Acceptance/Dismissal letter dismissing claims (8) and (9) because the
claims alleged a breach of settlement. On December 6, 2005, the AJ
issued an Order affirming the dismissal. The record indicates that
complainant then raised a breach of settlement claim pursuant to 29
C.F.R. � 1614.504.
2 Although complainant framed his issue stating that "the two LOWs
were accompanied by other unspecified retaliatory actions," implying
perhaps that management engaged in subsequent discriminatory acts,
complainant specifically states in his affidavit that "no significant
related action was taken by management after rescinding the LOWs - other
than to unilaterally withdraw from the aforementioned mediation re:
this instant complaint." Consequently, we do not find that the claim
requires further review.
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0120070679
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036