0120151132
07-15-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120151132
Agency No. 4E980008114
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 30, 2014, dismissing her 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., 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 Bulk Mail Clerk at the Agency's Coeur D'Alene Carrier Annex in Cala, Idaho.
On November 26, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. on January 16, 2013, she was issued a Letter of Demand for Indebtedness for Employee Health Benefits for medical expenses that had already been paid by the Office of Workers' Compensation Programs (OWCP);
2. on June 20, 2014, health benefit premiums which had already been paid by OWCP were deducted from her paycheck;
3. on July 4, 2014, health benefit premiums which had already been paid by OWCP were deducted from her paycheck; and
4. on or around September 15, 2014 her job title, pay location and pay level changed on paper only.
The Agency dismissed claims one (1) and two (2) for untimely contact with an EEO Counselor per 29 C.F.R. �1614.107(a)(2), and all four claims for failure to state a claim under 29 C.F.R. �1614.107(a)(1). Specifically, the Agency found that claims one (1), two (2) and three (3) were brought in an improper forum and constituted a collateral attack on workers' compensation proceedings. Regarding claim four (4), the Agency found that Complainant failed to establish that she was an "aggrieved" employee and therefore lacked standing for bringing an EEO complaint.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1, 2 and 3 - Failure to State a Claim
The regulation set forth at 29 CF.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. The Commission has generally held that complaints involving other administrative proceedings, including those involving the OWCP and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (September 29, 1994) The Commission's rejection of such claims can include a claim of harassment based on the Agency's actions (mishandling benefit claims and payroll) directly related to the OWCP process. See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (August 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her OWCP paperwork constituted harassment).
We find that Claims 1, 2 and 3, which all arise from incidents relating to workers' compensation payments constitute a collateral attack on the OWCP adjudicatory process, and therefore fail to state a claim. We decline to address the Agency's additional rationale for Complainant's failure to state a claim.
Claim 4 - Reprisal
Complainant alleges that on or around September 15, 2014, the Agency changed her job title, pay location, and pay level on paper only, as retaliation for engaging in protected EEO activity (initiating contact with an EEO counselor on August 12, 2014 and interviewing with an EEO counselor on September 12, 2014). The Postmaster overseeing Complainant's facility stated that Complainant's position as a Clerk at the Business Mail Entry Unit (BMEU) had been abolished because it was not a full-time bid position. The Agency argues that after the change on paper, Complainant continued working as though nothing changed and therefore she has not alleged a present harm or loss with regard to a term, condition, or privilege of employment.
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 (April 21, 1994) We find Complainant meets this burden, particularly where on appeal, Complainant reported that her earnings statement for pay period 2 of 2015 lists her pay grade as 6 instead of 7. By definition, pay grade is a term or condition of employment, and a decrease indicates that the changes to her job description may not have been "on paper only."
We decline to examine the issues discussed in the record regarding the Agency's rationale for making the changes to Complainant's job information and whether the Union was informed because they relate to the merits of the case. The Commission has long held that "[an] Agency's assertion regarding the reason for the changes ... goes to the merits of the formal complaint, and is irrelevant to the procedural issue of whether Complainant stated a justiciable claim." See Ray v. U.S. Postal Serv., EEOC Appeal No. 0120083541 (Jul. 26, 2012) (citing Osborne v. Dep't Treasury, EEOC Request No. 05960111 (July 19, 1996)).
Notwithstanding the pay level decrease, even if the Agency's action amounted to a change on paper only, "[t]he Commission has a policy of considering reprisal claims with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) (nonselection is a sufficient agency action even though nonselection would leave Complainant in the same position as before the alleged discriminatory employment action, because the threat of nonselection is reasonably likely to deter complainant or others from engaging in protected activity) (citing Carroll v. Dep't Army, EEOC Request No. 05970939 (April 4, 2000)). We find that the insecurity of having her position abolished without an official action is could reasonably be found to deter engagement in protected EEO activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's claims 1, 2, and 3 and REMAND claim 4 for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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
July 15, 2015
__________________
Date
2
0120151132
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151132