0120172398
12-06-2017
Gerard M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerard M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120172398
Agency No. 4J493002817
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 1, 2017, dismissing his complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's Kalamazoo Westwood Station facility in Kalamazoo, Michigan.
On May 17, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), disability ("mental and physical disability"), and reprisal for prior protected EEO activity ("whistleblower") under an EEO statute that was unspecified in the record. He stated in his complaint that, during several in-person meetings with his immediate supervisor in March 2017, the supervisor "attempted to intimidate Complainant" by demanding that he perform duties outside of Offer of Modified Assignment (PS Form 2499, signed on March 3, 2017), and tried to intimidate him with a pre-disciplinary letter/interview in retaliation for his EEO complaint against her.
He claimed that, on March 18, 2017, management "unethically tried to intimidate [him], concurrent with [an] untimely and fraudulent accusation" with regard to a demand of overpayment.
The Agency reframed the issues in Agency Case Number 4J493002817 as alleging discrimination based on race, color, sex, retaliation and disability when:
1. on dates not specified in March 2017, the supervisor tried to make Complainant work outside the restrictions of his PS Form 2499 Offer of Modified Assignment and threatened him when he would not agree;
2. on April 3, 2017, he was given an investigative interview;
3. on March 18, 2017, management sent Complainant a Letter of Demand for an overpayment; and
4. on dates not specified, Complainant did not receive a PS Form 1767, Report of Hazard, Unsafe Condition or Practice.
According to the EEO Alternative Dispute Resolution Specialist's Inquiry Report (EEO counseling report), Complainant specifically alleged that the Supervisor, Customer Service, through verbal and text communication engaged in "malicious acts of discrimination in retaliation for his protected EEO activity and engaged in harassment and retaliation by breaching a prior EEO settlement." 2
The record includes a Letter of Intent, dated February 9, 2017, which informed Complainant that his absence from duty, from January 26, 2017 to the date of the letter, was considered as Absent without Official Leave (AWOL).3 The February 9, 2017 Letter of Intent informed Complainant that he needed to submit a satisfactory reply and/or acceptable medical certification or corrective action will be taken which may include his removal or separation from the Postal Service.
On April 3, 2017, management officials sent Complainant a notice of involuntary administrative salary offsets, citing the Debt Collection Act. On April 7, 2017, a pre-disciplinary investigative interview was held. On April 20, 2017, Complainant received an invoice from management for $678.60.
On May 1, 2017, Complainant stated that he provided management a supplemental letter affirming his medical restrictions regarding the USPS fleet vehicles. He claimed that he must work in a smoke-free environment. He claims that management continued to threaten him with termination if he did not "change [his] position of the conditions of his employment." He claims that he was never given a Form 1767 to report the hazardous condition to which he claims to have been subjected by management. On May 8, 2017, Complainant sent a two-page letter to the "NEEOISO alerting them of continuous threats, intimidation tactics, and concerns of reprisal and retaliation from USPS management officials." He includes this as Exhibit 24 on this appeal. He cites the date of filing of his complaint as May 8, 2017. The Agency cites the date of filing of the complaint at issue as being filed on May 17, 2017.
Agency Decision
The Agency issued a final decision dismissing the May 2017 complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that the issue (1) was a collateral attack on the proceedings of the Office of Workers' Compensation Programs and the Agency's negotiated grievance procedure. In issue (2), the Agency found that Complainant did not allege a loss of a term, condition, or privilege of employment or that he was subjected to any adverse action. In issue (3), the Agency reasoned that Complainant was "essentially alleging violations of the Debt Collection Act" which is outside the scope of the Commission's jurisdiction. Finally, with regard to issue (4), the Agency found that Complainant was lodging another collateral attack because the alleged issue was "exclusively within the jurisdiction of the Department of Labor's Office of Safety and Health Administration (OSHA).
This appeal followed.
CONTENTIONS ON APPEAL
Complainant submitted 162 pages of supplemental documentation in support of his appeal. He argues that the Agency erroneously dismissed his complaint because he argues that he stated a claim of unlawful retaliation and failure to accommodate his medical condition in accordance with the terms of the Modified Job Offer. Complainant appears to be raising new allegations in his appeal. Specifically, Complainant's submission on appeal included documentation, showing that, on July 7, 2017, he contacted an EEO counselor to raise new retaliation and disability allegations with regard to other incidents that occurred after his filing of this complaint on May 17, 2017, and subsequent termination.
Finally, Complainant states, on appeal, that he filed a written appeal to management objecting to the involuntary salary offsets, but management had not responded to him as of July 25, 2017.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
The Commission has found that any action by an Agency manager that interferes with an employee's rights to pursue the EEO complaint process, or has the effect of intimidating or chilling the exercise of those rights under the EEO statutes, constitutes a violation of the statutory protection against retaliation. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (October 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Here, a fair reading of the complaint shows that Complainant is alleging that he has been denied a reasonable accommodation and has been subjected to threats of disciplinary action designed to interfere with his pursuit of his rights through protected EEO activity. These are viable claims that can be pursued in the 29 C.F.R. Part 1614 EEO complaint process. As such, claims (1) and (2) should not have been dismissed, but need to be investigated and further processed. We agree, however, that claims (3) and (4) fail to state a claim.
Finally, to the extent that Complainant wishes to raise new claims with regard to incidents that occurred after the filing of this complaint, he should initiate contact with an EEO Counselor. If Complainant has already made the appropriate EEO contact, the Agency should process the claims. Because it is apparent from Complainant's appeal statement that he wished to raise ongoing reprisal as a basis, we find that, on remand, the Agency should attempt to consolidate any outstanding claims of reprisal for processing.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint claim (1) and (2). WE AFFIRM regarding claims (3) and (4). We REMAND the reversed portion of the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims (1 and 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 was 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 was 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 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 (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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2017
__________________
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.
2 The claim of breach of the settlement agreement was addressed in EEOC Appeal 0120170365 (March 22, 2017).
3 The EEO counseling report also referenced the April 7, 2017 Pre-Disciplinary Interview in which the manager questioned Complainant about his failure to maintain regular attendance.
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