0120150063
02-20-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120150063
Agency No. 4C-080-0082-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 11, 2014, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Post Office in Cinnaminson, New Jersey.
Complainant contacted the EEO Counselor alleging that he was subjected to discrimination based on a settlement agreement signed on January 29, 2003, and his representation of a coworker in an EEO matter. Complainant indicated that the Supervisor contacted him to request new medical information and two letters stating he was scheduled for window training which Complainant asserted involved work outside of his medical restrictions.
When the matter could not be resolved informally, on August 12, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity when, from April 7, 2014 to the present date, the Supervisor repeatedly subjected Complainant to intentional harassment. In support of his claim, Complainant indicated that: on April 7, 2014, he received a letter to update medical information; on April 8, 2014, he received a letter scheduling him for window training, and on April 9, 2014, he received another letter for window training. Complainant also noted that he received a letter from the Supervisor changing his medical restricted drop day Saturday off to a rotating day off schedule and that the Supervisor made changes to his assignment just so that he could request new medical documentation.
On August 26, 2014, the Agency acknowledged receipt of the formal complaint. The Agency defined the claims raised in the complaint as the following:
1. On April 7, 2014, Complainant received a letter requesting an update of his medical information;
2. On April 8 and 9, 2014, Complainant received letters scheduling him for window training;
3. On July 15, 2014, he received a letter changing his medically restricted drop day Saturday off to rotating days off; and
4. On August 9, 2014, Complainant was informed that the Supervisor requested new work accommodations so he could ask for medical update.
In its acknowledgment of the complaint, the Agency dismissed claims (1), (2) and (4) while accepting claim (3) for investigation. The Agency dismissed claims (1) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant had not alleged any loss or harm related to a term, condition or privilege of employment. The Agency indicated that Complainant was asked to provide updated medical information pursuant to a light duty request. As such, Complainant has not been aggrieved by claims (1) and (4). As for claim (2), the Agency dismissed this claim also pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant was never actually required to attend training. Therefore, with claim (2), Complainant was not harmed.
Subsequently, on September 11, 2014, the Agency issued its final decision dismissing claim (3) and restating its dismissal of claims (1), (2) and (4). The Agency dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that management decided that he regular schedule would not be changed. Therefore, again, the Agency concluded that Complainant failed to show he was aggrieved and the complaint as a whole was dismissed.
This appeal followed.
ANALYSIS AND FINDINGS
Disability-Based Discrimination
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).
As for claims (1) and (4), we find that the Agency's dismissal was not appropriate. We note that Complainant has alleged that the Agency's request for medical documentation was made in violation of the Rehabilitation Act. The Agency's reasons for requesting additional medical documentation concern the merits of the formal complaint, and are irrelevant to the procedural issue of whether Complainant stated a justiciable claim. See Osborne v. Dep't. of the Treasury, EEOC Request No. 05960111 (July 19, 1996). As such, we find that the Agency improperly dismissed claims (1) and (4).
As for claims (2) and (3), the Agency indicated that Complainant was not actually sent to window training or that his scheduled day off had been changed. As such, it appears that the events raised constituted proposed events which the Agency did not act upon. Therefore, we find that the dismissal of the basis of disability for claims (2) and (3) was appropriate.
Retaliation-Based Discrimination
Complainant also alleged that claims (1) - (4) occurred because of his prior EEO complaint which was settled and because of his representation of a co-worker regarding an EEO matter. 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. Upon review, we find that Complainant has asserted events which are reasonably likely to deter him or others from engaging in protected activity. Therefore, we find that the Agency's dismissal of claims (1) - (4) on the basis of reprisal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of the basis of disability with regard to claims (2) and (3). We REVERSE the Agency's dismissal of the basis of disability with respect to claims (1) and (4) and the basis of reprisal for claims (1) - (4) and REMAND these claims for further processing in accordance with 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 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 20, 2015
__________________
Date
2
0120150063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120150063