Winford M.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Nov 5, 2019

EEOC Appeal No. 2019005757 (E.E.O.C. Nov. 5, 2019)

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

Winford M,1
Complainant,

v.

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

Appeal No. 2019005757

Agency No. 4X-148-0009-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 8, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of 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

During the period at issue, Complainant worked for the Agency as a Customer Care Agent in
Los Angeles, California.

On June 11, 2019, Complainant filed the instant formal complaint, claiming that the Agency
subjected him to discrimination based on disability, age, and in reprisal for prior protected EEO
activity.

On July 8, 2019, the Agency issued a final decision. The Agency determined that the formal
complaint was comprised of the following claim:

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.
2019005757

2
Between October 19, 2013 and March 30, 2019, [Complainant was] working a
flexible and compressed work schedule of four ten-hour days per week and [was]
denied overtime for the two hours per day [he] worked more than eight hours and
[was] only paid eights hours a day for [his] holidays.

The Agency dismissed the formal complaint for failure to a claim. The Agency reasoned that
this was a “matter committed to the jurisdiction of the Department of Labor and to an
authoritative interpretation of two national Memoranda of Understanding between the Postal
Service and the American Postal Workers Union entitled Modified Work Week Guidelines and
Overtime Rules for Non-Traditional Full-Time Duty Assignments…Although these
documents…do not support [Complainant’s] contention that [he was] entitled to overtime while
in a 10/4 assignment if [he] worked more than eight hours a day, the authority conclusively to
rule on [his] overtime claim is the Wage and Hour Division of the Department of Labor which
administers and enforces the Fair Labor Standards Act.”

The Agency also dismissed the formal complaint on the alternate grounds of untimely EEO
Counselor contact. The Agency reasoned that Complainant has known since October 2013, that
he was not eligible for overtime in his compressed schedule and he is now attempting to reach
back over the six preceding years.

The instant appeal followed. On appeal, Complainant reiterates that he is being subjected to
discrimination regarding his overtime and holiday pay. Complainant also asserts that the Agency
improperly dismissed his complaint for untimely EEO Counselor contact. Complainant asserts
that his four-day work week changed effective March 30, 2019, and thus, his compensation
claim occurred within the 45-days preceding his initial EEO contact date. Complainant states he
timely initiated EEO contact under the Lily Ledbetter Fair Pay Act.

ANALYSIS AND FINDINGS

Dismissal for Failure to State Claim

The Agency improperly dismissed Complainant’s complaint for failure to state a claim. The only
questions for an agency to consider in determining whether a complaint states a claim are: (1)
whether complainant is an aggrieved employee; and (2) whether complainant raises employment
discrimination on a basis covered by EEO statutes. If these questions are answered in the
affirmative, an agency must accept the complaint for processing regardless of its judgment of the
merits. See Odoski v. Dep’t of Energy, EEOC Appeal No. 01901496 (April 16, 1990). We find
that the crux of Complainant’s claim is that he is alleging a discriminatory compensation claim
pertaining to overtime and holiday pay based on his protected classes. Thus, he has set forth an
actionable claim.2

2 To the extent that Complainant is alleging that the Agency is violating the collective bargaining
agreement or the Fair Labor Standards Act, we concur with the Agency that these matters are not
within the jurisdiction of the Commission. However, as set forth above, we find that the crux of
2019005757

3
To the extent the Agency asserts that Complainant is being properly paid in accordance with
union agreements and the Fair Labor Standards Act, this assertion goes to the merits of
complainant’s complaint, and is irrelevant to the procedural issue of whether he has stated a
justiciable claim. See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19,
1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v.
U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991).

Dismissal for Untimely EEO Counselor Contact

The Agency also improperly dismissed the formal complaint for untimely EEO Counselor
contact. As set forth above, Complainant is alleging a discriminatory compensation claim
related to his holiday and overtime pay. The Lilly Ledbetter Fair Pay Act of 2009, Public Law
111-2, 123 Stat. 5 (Jan 29, 2009), applies to all claims of discrimination in compensation under
Title VII, the ADEA, and Title I and Section 503 of the Americans with Disabilities Act of 1990
and Sections 501 and 504 of the Rehabilitation Act pending on, or after, the effective date of the
Act. It provides:

...an unlawful employment practice occurs, with respect to discrimination in
compensation in violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice, or when an individual is
affected by application of a discriminatory compensation decision or other
practice, including each time wages, benefits, or other compensation is paid,
resulting in whole or part from such a decision or other practice.

In the instant matter, Complainant alleges he was subjected to discriminatory compensation
pertaining to his four-day workweek position until his reassignment into a five-day workweek
position on March 30, 2019.3 Thus, Complainant’s discriminatory pay claim occurred within the
45-days preceding his initial EEO contact on May 4, 2019.4

We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND
this matter to the Agency for further processing in accordance with the ORDER below.

Complainant’s complaint is a discriminatory compensation claim which sets forth an actionable
claim.

3 The record contains a Notification of Personnel Action Form for Complainant reflecting that
the reassignment was effective March 30, 2019.

4 According to the EEO Counselor’s Report, Complainant initiated EEO contact on May 4, 2019.
However, according to the Information for Pre-complaint Counseling Form, Complainant
initiated EEO contact on April 23, 2019. Complainant’s alleged discriminatory compensation
claim is timely under either of these dates.
2019005757

4
ORDER (E0618)
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 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

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. 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.
2019005757

5
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 C.F.R. § 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.
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.
2019005757

6
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

November 5, 2019
Date