Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

May 29, 2013

0120122099 (E.E.O.C. May. 29, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120122099

Agency No. 1B-021-0003-12

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
March 29, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, we REVERSE the Agency’s
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mailhandler at the
Agency’s Processing and Distribution Center in Boston, Massachusetts. On March 12, 2012,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the bases of disability, age (54), and in reprisal for prior protected EEO activity when:

1. He was only paid for 4 hours of overtime on December 31, 2011, his non-
scheduled day; and

2. The February 16 – 21, 2012 schedule, posted next to the badge rack, had “L/D”
(limited duty) listed next to his name.

On March 29, 2012, the Agency dismissed the complaint. As to claim (1), the Agency
determined that Complainant’s limited duty assignment required him to only work four hours
per day. He received workers’ compensation benefits for the remaining four hours. Because
both his work limitations and pay were controlled by the Office of Workers’ Compensation
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Programs (OWCP), any concerns that he had regarding his pay could only be processed
through OWCP. As a result, the Agency concluded that claim (1) constituted a collateral
attack on the OWCP process and dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. Additionally, the Agency found that Complainant had not been
harmed by the incident alleged in claim (2). As a result, the Agency dismissed claim (2) for
failure to state a claim. This appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that claim (1) was direct retaliation for his prior protected
EEO activity involving his supervisor. Further, Complainant argues that his supervisor
intentionally posted the schedule with “L/D” listed by his name to cause him personal and
work-related harm. Accordingly, Complainant requests that the Commission reverse the
Agency’s dismissal.

ANALYSIS AND FINDINGS
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, disabling condition, genetic information, or in reprisal for prior protected EEO activity.
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. Dep't of the
Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

As to claim (1), the Commission finds that Complainant is not alleging dissatisfaction with the
outcome or processing of an OWCP claim; rather, he is alleging that he is guaranteed to be
paid for eight hours of overtime for working on his non-scheduled day, and that the Agency,
not OWCP, failed to pay him the additional four hours of overtime on the day in question.
The Commission finds that Complainant has sufficiently stated a claim of discrimination and
reprisal.

Regarding claim (2), Complainant claimed that his supervisor intentionally placed a schedule
with “L/D” listed next to his name. Complainant claimed that his co-workers were unaware
that he was on limited duty and this caused him personal and work-related harm. The
Commission finds that Complainant has stated a claim alleging a violation of the confidentiality
provisions of the Rehabilitation Act. In addition, the Commission has a policy of considering
reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC
Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions
which can be challenged are not restricted to those which affect a term or condition of
employment. Rather, a complainant is protected from any discrimination that is reasonably
likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,”
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No. 915.003 (May 20. 1998), at 8-15; see also Carroll. The Commission finds that publicly
disclosing an employee’s limited duty status could deter an employee from engaging in
protected activity. As a result, the Commission finds that the Agency improperly dismissed
claim (2).

CONCLUSION

Accordingly, the Agency's decision to dismiss Complainant's complaint was improper, and is
hereby REVERSED. The complaint is 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
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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 tends 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 (R0610)

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
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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

(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

May 29, 2013
Date