0120113996
02-03-2012
Terry J. Miller, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Terry J. Miller,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113996
Agency No. 1K231005411
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated July 25, 2011, 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. Upon review, the Commission finds that Complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Supervisor of Distribution Operations at the Agency’s
Processing & Distribution Center in Richmond, Virginia. On July 9,
2011, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of sex (male) and reprisal
for prior protected EEO activity under Title VII when: (1) on May 16,
2011, he was required to train another supervisor on the platform without
having been trained himself; and (2) on an unspecified date, he had been
promised consideration in being returned to the Motor Vehicle Services
(MVS) craft which has not occurred.
In it final decision, the Agency determined that directing employees
in the performance of their duties and ensuring the efficiency of the
operations which, in the Postal Service, relate directly to the provision
of essential communication services to the public, are the core duties
of supervisors and managers and is clearly within the realm of managerial
prerogative and authority. The EEO complaint process should not be used
to challenge routine instructions directing employees to perform work
within their crafts and job descriptions or to express a preference for
a different policy or practice than the one implemented by management.
Therefore, claim 1 does not render Complainant aggrieved. Concerning
claim 2, the Agency noted that this issue was the subject of Complainant's
prior EEO complaint no.1K-231-0026-11, where Complainant alleged that he
was also assured he would be given full consideration in being returned
to a supervisor or driver in the MVS craft. The record reflects that
Complainant subsequently withdrew his prior EEO complaint 1K-231-0026-11.
CONTENTIONS ON APPEAL
Complainant contends that he has received disciplinary action, and the
terms and conditions of his employment have been drastically changed from
being a supervisor who was highly regarded for his proficiency in the
MVS craft, to a Supervisor of Distribution Operations under constant
scrutiny, harassment, and discipline for being made responsible for
units he has not been trained to work. Complainant further contends that
female supervisors, who are also supervised by his first-level manager,
have not been subjected to the adverse consequences of being forced
to perform their duties without training. Complainant also contends
that these supervisors have been rewarded preferential assignments.
These inequitably placed, female supervisors, Complainant argues,
will then have an advantage when competing for promotions for which
he will not be considered. In response, the Agency notes that while
Complainant received Proposed Letters of Warning from management, he
was never disciplined in this matter.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. Here,
the record reflects that claim 2 was the subject of Complainant's prior
EEO complaint 1K-231-0026-11, and therefore the Agency’s dismissal of
claim 2 was proper.
Regarding claim 1, Complainant has shown an injury or harm to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Complainant claims that he has not been trained for his
current position; yet he is expected to proficiently perform his duties
amidst unwarranted hostility by management. Complainant has shown that
he is aggrieved. Accordingly, the Agency's final decision dismissing
claim 1 for failure to state a claim is REVERSED.
CONCLUSION
The complaint is hereby REMANDED to the Agency for further processing
in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims 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 (Nov. 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 (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 (Z0610)
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 3, 2012
__________________
Date
2
0120113996
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113996