EEOC Appeal No. 0120162656
11-07-2016
Preston B. v. U.S Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Preston B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120162656
Agency No. 4G-752-0225-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 21, 2016, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Lead Sales and Service Associate for the Agency in Lancaster, Texas.
On May 31, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On June 30, 2016, Complainant filed the instant formal complaint, claiming that the Agency subjected him to discrimination on the bases of race, sex, color and in reprisal for prior protected activity.
On July 21, 2016, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following two claims:
1. on May 16, 2016, Complainant's union steward informed Complainant that the Postmaster denied his grievance concerning Complainant not being paid properly; and,
2. on a date not specified, Complainant's schedule was changed by one hour.
Regarding Claim 1, the Agency determined that the proper forum for Complainant to raise his dissatisfaction with the Postmaster's decision was with the grievance procedure itself, and not through the EEO process. The Agency dismissed Claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was lodging a collateral attack on the proceedings of another forum, specifically proceedings related to the grievance procedure.
The Agency additionally dismissed Claim 1 for failure to timely contact an EEO Counselor, pursuant to 29 C.F.R. � 1614.107(a)(2) . The Agency noted that Complainant believed he was owed back pay from December 27, 2014 through February 12, 2015, and that he reported this discrepancy in August 2015. The Agency determined that instead of contacting an EEO Counselor within 45 days of the discrete action, Complainant waited until May 31, 2016, nearly a year later, to contact an EEO Counselor.
Regarding Claim 2, the Agency determined that Complainant alleged discrimination when his start time was changed from 9:00 AM to 10:00 AM. The Agency determined that the one hour change failed to render Complainant aggrieved. Therein, it dismissed Claim 2 pursuant to pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal followed. On appeal, Complainant contends that the Agency misinterpreted his claims. Regarding Claim 1, Complainant contends that his allegation "was that the Postmaster has a practice dating back to 2013 for not paying me hours that I have worked, and as recent as in 2015, I became aware that the Postmaster does in fact pay similarly situated employee outside of my protected race, color and gender class for hours that she works, unlike the manner in which he treats me." Complainant further contends that his "EEO complaint is not based on the outcome of any grievance, but rather my finding out that the Postmaster refused to pay me - in the normal course of business and as part of a grievance - for hours worked, but does so for the similarly situated Caucasian female comparator." (emphasis added).
Regarding Claim 2, Complainant similarly contends that the Agency misrepresented his claim and that it was not merely just a change, but a time change made in reprisal for prior protected activity.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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).
Regarding claim 1, Complainant contends on appeal that his claim was misinterpreted, and that his claim was not based on the outcome of his grievance, but rather that the Postmaster refused to properly pay him. However, we find that Complainant's claim is inextricably tied to the outcome of his grievance and is more properly adjudicated within that system. We note that Complainant chose to file the instant formal complaint only after he realized that his grievance was being denied. Complainant's discovery of a purported comparator who he asserts was treated more favorably does not change this. We determine that the Agency's dismissal of claim 1 as an improper attempt to use the EEO process to collaterally attack his grievance decision was proper.
Regarding claim 2, a fair reading of this claim indicates that Complainant is alleging that the Agency changed his start time by one hour in retaliation for his prior EEO activity. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016). Here, we find that the Agency erred in dismissing this allegation for failure to state a claim. We find that Complainant has sufficiently alleged a claim that the change in his schedule was motivated by retaliatory animus. Therefore, we reverse the dismissal of this claim.
CONCLUSION
The Agency's final decision dismissing the formal complaint is AFFIRM in part and REVERSED in part. Claim 2 is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim 2 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 is 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 is 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.
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 (M0416)
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 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. The requests 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 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 (T0610)
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 (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
Carlton M. Hadden, Director
Office of Federal Operations
November 7, 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.
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