0120081464
09-22-2009
Lawrence Doncontell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lawrence Doncontell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081464
Agency No. 4E852017507
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 3, 2008, 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint, complainant, a City Carrier at the agency's Phoenix,
Arizona Cactus Station, alleged that he was subjected to discrimination
on the bases of race (African American), age (forty-three years old),
and reprisal (injured back)1 when, from August 2, 2007 to August 10,
2007, complainant was instructed to sort Undeliverable Bulk Business
Mail (UBBM) outside in temperatures of 110 to 115 degrees, whereas other
employees were permitted to sort UBBM inside. The agency dismissed this
complaint for failure to state a claim.
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 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,
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).
In addition, the Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under Commission policy,
claimed retaliatory actions that can be challenged are not restricted
to those which affect a term, condition, or privilege of employment.
See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53
(2006); EEOC Compliance Manual Section 8, "Retaliation;" No. 915.003
(May 20, 1998), at 8-15. Rather, a complainant is protected from any
discrimination that is reasonably likely to deter protected EEO activity.
See id.
Applying these principles to this case, the Commission finds that the
agency improperly dismissed the complaint for failure to state a claim.
Complainant alleged a set of facts that, if true, may be sufficient
to constitute a claim of disparate treatment in the conditions of
complainant's employment with regard to his work assignments. A fair
reading of the record, as reiterated by complainant's arguments on
appeal, is that complainant asserts multiple incidences, occurring
over a series of nine days, in which he was forced to sort UBBMs under
undesirable working conditions in hot temperatures outdoors compared
to similarly situated employees, who sorted UBBMs in cooler working
conditions indoors. These actions against complainant, if true, would be
sufficiently severe to alter the conditions of complainant's employment.
In addition, these actions may be enough to reasonably deter others from
protected EEO activity; therefore, they are sufficient to state a claim
for retaliation.
Accordingly, the Commission reverses the agency's final decision
dismissing this complaint. The Commission remands the disparate treatment
claim to the agency for further processing in accordance with the Order
below.
ORDER (E0408)
The agency is ordered to process the remanded disparate treatment claim
in accordance with 29 C.F.R. � 1614.108. 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
September 22, 2009
Date
1 In his formal complainant, complainant checked the box for
retaliation as a basis of discrimination and wrote "back injury" next
to retaliation. Complainant did not check the box for disability as
a basis of discrimination. In its dismissal of the complaint, the
agency listed as an alleged basis of discrimination "[r]etaliation
(injured back)." However, in his brief on appeal, complainant alleges
that he was subjected to discrimination on the bases of race (African
American), age (forty-three years old), and disability (unspecified).
In addition, in his appellate brief, complainant alleges that he was also
subjected to harassment and a hostile work environment. If complainant
wishes his complaint to include allegations of harassment/hostile work
environment and discrimination on the basis of disability, complainant
should formally request to the agency that it amend his complaint to
include those allegations. We note that, on remand, the agency will
per force determine whether complainant in fact has asserted reprisal
for prior protected EEO activity.
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0120081464
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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