McKinley P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

2019005014 (E.E.O.C. Sep. 24, 2019)

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

McKinley P.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 2019005014

Agency No. 4G-390-0099-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 17, 2019, 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.

BACKGROUND

At the time of this matter started, Complainant worked as a Postmaster at the Madison Post
Office in Madison, Mississippi. In order to accommodate a medical condition, Complainant
applied for another position with the Agency.

Complainant filed an EEO complaint in which he alleged that the Agency discriminated against
him on the bases of race, disability, age, and in reprisal for prior protected EEO activity under
Title VII, the ADEA, and the Rehabilitation Act, when he was not selected for the position of
District Safety Specialist under Job Posting # 10158951.

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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Complainant appealed the Agency’s final decision to the Commission, and in Appeal No.
2019001172 (April 9, 2019), we found that the Agency had unlawfully retaliated2 against
Complainant. To remedy Complainant for this violation, we ordered the Agency to retroactively
place Complainant in a District Safety Specialist, EAS-16, position, or a substantially equivalent
position, at the Mississippi District - Jackson GMF in Jackson, Mississippi.

On June 6, 2019, Complainant filed another EEO complaint alleging, on May 9, 2019, in
compliance with the order in EEOC Appeal No. 2019001172, Complainant received an offer of
two job positions from the Agency, which he was asked to either accept or decline and provide a
decision in writing by close of business that same day.

The Agency dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same
claim as a previously-filed claim. The instant appeal followed.

ANALYSIS AND FINDINGS

Complainant alleges that, in reprisal for winning his initial complaint, the Agency offered him
the choice of two positions while providing him an unreasonably short time-period for him to
accept or decline the offers. The Agency is correct in determining that this matter should not be
the subject of a separate EEO complaint and, to that extent, its procedural dismissal of the new
complaint is affirmed. However, the correct procedure for Complainant was to seek compliance
with EEOC’s order by contacting his assigned EEOC Compliance Officer and initiating a
petition for enforcement. In the interests of justice and to expedite the resolution of this matter,
we will consider the instant appeal as Complainant’s petition for enforcement of the order in
EEOC Appeal No. 2019001172.

Complainant contends that when the Agency offered him retroactive placement in the two
positions, he was not granted sufficient time to meaningfully accept or decline either remedial
offer. Specifically, Complainant contends that the Agency’s offer letter was sent by certified
mail on May 6, 2019, and that he “received notice [to pick up certified letter] at my house May 7,
2019 [and] I picked the letter up after work May 9, 2019.” Complainant further noted that the
offer letter required that he “accept or decline this offer in writing and provide your decision to
me no later than close of business on Thursday May 9, 2019.”

Complainant argues that such a short response time is unreasonable and shows that the Agency
did not make the offer in good faith. Complainant maintains that, “I was not given a fair and
equitable amount of time to decide how I want my Postal career path to continue. I do not want
to rush to some judgement in haste because I was not afforded the opportunity to consider my
options” and further notes that Agency employees applying for newly posted positions are
generally given ten days to accept an offer, whereas he was given at most two days.

2 We declined to analyze whether Complainant had also been subjected to disparate treatment on
the basis of race, disability, and/or age as no additional remedial relief would stem from such a
finding.
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We note that our prior Decision is dated April 9, 2019, and in that Decision we ordered that
Complainant be retroactively placed in the position, or a substantially equivalent position “within
60 calendar days from the date of this decision.” While the Agency is to be commended for
making Complainant an offer within half that time, there was approximately a full month still to
run before the expiration of the time-period mandated in our Order. As such, there is no basis for
providing Complainant such a short response-time and we find that requesting a definitive
response within three days of mailing the offer was unreasonable. We note in this regard that the
offer letter did not state that Complainant should respond within three days of receiving the
letter, but within three days of the letter having been sent to him, thus leaving open the very real
possibility that even if Complainant had opened the letter the moment it was delivered, had the
letter been delayed in the mail, he still might have been too late through no fault of his own. We
find this to be inherently unreasonable and we therefore find that by giving Complainant such a
short time to make a decision, the Agency acted in bad faith and failed to comply with the spirit
of our Order.

CONCLUSION

Based upon a review of the record and the submissions of the parties, and for the foregoing
reasons and given the unique circumstance of this case, the Commission concludes that the
Agency has failed to fully comply with our April 9, 2019 Order by not providing Complainant a
reasonable amount of time to accept or deny the offers made to him, we REMAND the matter to
the Agency. The Agency is required to comply with the Order below.

ORDER

Within 45 calendar days from the date of this decision, the Agency, if it has not already done so,
is ordered to retroactively place Complainant in a District Safety Specialist, HAS-16, position, or
a substantially equivalent position, at the Mississippi District - Jackson GMF in Jackson,
Mississippi. Complainant shall be given ten (10) calendar days from the date of receipt of the
offer to either decline or accept the position. A failure to respond after ten (10) calendar days
from the date of receipt of the offer shall be deemed a declination of the offer. If Complainant’s
back pay was halted as of May 9, 2019, his entitlement to back pay shall resume effective that
date, up to the date Complainant accepts or declines any Agency position.

The remaining Orders from 2019001172 shall remain in force and are unaffected by this
decision.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored.
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Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report
in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s
final report must contain supporting documentation when previously not uploaded, and the
Agency must send a copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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 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. 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.
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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.
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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

September 24, 2019
Date