Kenneth M. Thomas, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 14, 2010
0120100821 (E.E.O.C. May. 14, 2010)

0120100821

05-14-2010

Kenneth M. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Kenneth M. Thomas,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 0120100821

Agency No. 4G720010109

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 29, 2009, 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.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of race (Black1), color (Black), and reprisal

for prior protected EEO activity under Title VII when:

1. On August 10, 2009, complainant's supervisor discussed racism in the

office with complainant, informed complainant that he had prior EEO

activity and questioned him as to whether or not complainant had any

prior EEO activity;

2. On August 11 & 13, 2009, complainant was not assigned the pivots he

requested, and;

3. On August 13, 2009, after complainant complained about the work

assignments, complainant's supervisor implied complainant was a racist

when he asked complainant why he disliked and complained about White

employees but not Black employees.

The agency dismissed the claims, finding that complainant failed to state

a claim of disparate treatment or harassment. Specifically, the agency

found that complainant was not aggrieved because he had not alleged

that he incurred a harm or loss from the agency's actions, and that

his allegations were not so severe as to state a claim of harassment.

Complainant presents no new argument on appeal.

We note initially that in its FAD, the agency analyzed whether

complainant's allegations rendered him aggrieved or were sufficiently

severe to constitute harassment. 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). However, under the

Commission's broad view of reprisal, any adverse treatment that is based

upon a retaliatory motive and is reasonably likely to deter the charging

party or others from engaging in protected activity, states a claim.

See Lindsey v. United States Postal Service, EEOC Request No. 05980410

(November. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May

20, 1998)).

Based on this standard, we find that, taking complainant's allegations as

a whole, he has at least stated a viable claim of unlawful retaliation

that needs further processing. While the FAD, with regard to claim 2,

notes that assignments "are within the realm of managerial prerogative

and authority," FAD, p.3, that is true only to the extent that such

assignments comply with the laws administered with this Commission.

Complainant's allegation that the agency failed to comply with such laws

states a valid claim of reprisal that needs to be investigated.

Accordingly, the agency's dismissal for failure to state a claim

is REVERSED and the complaint is remanded for further processing in

accordance with the following Order.

ORDER (E0408)

The agency is ordered to process the remanded complaint 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 (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 (R0408)

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 (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

May 14, 2010

__________________

Date

1 In the FAD, the agency indicated that complainant's race and color were

unspecified and a look at the Formal Complaint reveals that complainant

did not specify his race or color. In his Informal Complaint, however,

complainant identified his race and color as indicated above.

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0120100821

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120100821