0120103780
02-14-2011
Christerphor C. Ziglar, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Christerphor C. Ziglar,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120103780
Agency No. 4E-852-0070-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 13, 2010, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race (African-American) and reprisal for
prior protected EEO activity under Title VII of the Civil Rights Act of
1964 when:
1. On June 8, 2010, Complainant's supervisor (Supervisor) made false
statements claiming he ordered Complainant off the clock at 6 pm;
2. On June 9, 2010, Complainant was denied lunch; and
3. On June 19, 2010, the Supervisor threatened Complainant with a letter
that indicating that Complainant's behavior was disruptive and one of
insubordination. The Supervisor also noted that Complainant's claims
of discrimination were without merit and that these accusations would
not be tolerated. Finally, the Supervisor stated that Complainant's
actions may be grounds for termination.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that Complainant failed to show that he was aggrieved by the
alleged discrimination. The Agency determined that Complainant has
not shown that he was subjected to any adverse action or denied any
entitlement in relation to a term, condition or privilege of employment.
The Agency also dismissed claims (1) and (2) pursuant to 29 C.F.R. �
1614.107(a)(5) finding that the matter was moot. The Agency found that
Complainant filed a grievance as to these issues which were resolved on
June 29, 2010. The Agency noted that Complainant received compensation
for these issues and there was no reasonable expectation that the allege
actions would recur. Finally, the Agency also dismissed claims (1)
and (2) finding that, to the extent Complainant was not satisfied with
the grievance, such a claim would be considered a collateral attack.
Therefore, the Agency also dismissed claims (1) and (2) pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONTENTIONS ON APPEAL
Complainant appealed asserting that he was in fact harmed by the
alleged actions. Complainant also provided a copy of a statement
regarding the discussion he had with the Supervisor asserting that his
claims of discrimination were without merit and that his actions could
be considered grounds for dismissal from the Agency. In addition,
Complainant submitted a copy of a Standard Form 50 indicating that he
has been terminated. The Agency requests that the Commission affirm
its final decision dismissing the complaint.
ANALYSIS AND FINDINGS
The Commission now turns to the Agency's dismissal of claims (1) and (2)
for mootness. The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides for the dismissal of a complaint when the issues raised therein
are moot. Upon review of the record, we find that the grievance did
in fact resolve claims (1) and (2). We note that Complainant has not
requested compensatory damages and Complainant was remedied by the
grievance decision. As such, we find that the events have completely
eradicated the effects of the alleged discrimination as raised in claims
(1) and (2) and the dismissal of those claims was appropriate.
The Commission then turns to the Agency's dismissal of claim (3),
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
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 or disabling condition. 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).
In claim (3), Complainant has alleged unlawful retaliation. Regarding
complainant's claim of reprisal, the Commission has stated that adverse
actions need not qualify as "ultimate employment actions" or materially
affect the terms and conditions of employment to constitute retaliation.
Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999)
(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,
the statutory retaliation clauses prohibit any adverse treatment that
is based upon a retaliatory motive and is reasonably likely to deter the
charging party or others from engaging in protected activity. Id. Here,
we find that Complainant has clearly alleged actions by the Supervisor
that is reasonably likely to deter protected activity. Therefore, we
find that the Agency's dismissal of claim (3) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim was not appropriate.1
We also note that claim (3) involved a threat to terminate Complainant's
employment. On October 20, 2010, Complainant notified that Commission
that he had, in fact, been terminated effective September 22, 2010.
Based on the facts of this case, we interpret this as an effort by
Complainant to amend his complaint in Agency No. 4E-852-0070-10, and we
determine that it is sufficiently like and related to claim (3) to make
amendment appropriate. As we are remanding claim (3) back to the Agency
for further processing, we will also remand the actual termination as
an amendment to be processed with claim (3).2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision dismissing claims (1) and (2). However, we REVERSE the
Agency's final decision dismissal of claim (3) and REMAND claim (3), as
amended to reflect an additional claim of discrimination/retaliation with
respect to the actual termination, for further processing in accordance
with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (June 2010 threats
and September 2010 termination) 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 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 (November 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 14, 2011
__________________
Date
1 While claims (1) and (2) were resolved as separate claims by the
grievance, Complainant may use those events, as well as any other
relevant events, as evidence in support of his claims concerning claim
(3) and his termination.
2 If Complainant has already filed a separate EEO complaint on his
termination, then that complaint should be consolidated with claim (3)
in Agency No. 4E-852-0070-10 for joint processing.
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0120103780
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120103780