0120113627
11-11-2012
MARION ISOM, COMPLAINANT, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.
MARION ISOM,
COMPLAINANT,
v.
PATRICK R. DONAHOE,
POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
AGENCY.
Appeal No. 0120113627
Agency No. 1C-171-0007-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2011, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. Upon review, the Commission finds that the final Agency decision should be modified.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at an Agency facility in Harrisburg, Pennsylvania. On June 6, 2011, Complainant filed a formal complaint wherein he claimed that the Agency discriminated against him on the bases of his race (African-American), national origin (unspecified), sex (male), religion (unspecified), color (black), age (48), and in reprisal for prior protected EEO activity when:
1. On March 27, 2011, and April 10. 2011, Complainant was required to perform jitney and forklift duties.
2. On unspecified dates, the Manager gave the Supervisor instructions to discipline Complainant if he refused work assignments.
On June 22, 2011, the Agency issued a final decision dismissing the complaint on the grounds of failure to state a claim. With regard to claim (1), the Agency stated that the proper forum for Complainant to have raised challenges regarding his bid assignment and associated duties is within the grievance procedure. The Agency reasoned that it is inappropriate to use the EEO process to seek collateral enforcement of a process governed by the Negotiated Labor Agreement. As for both claims, the Agency stated that there is no evidence that Complainant was subjected to any adverse action or that he was denied any entitlement with regard to a term, condition, or privilege of his employment.
On appeal, Complainant submits statements from two coworkers that indicate Complainant's Supervisor was pressured by the Manager to discipline him if he refused an assignment and that the Supervisor did not believe such discipline was warranted.
ANALYSIS AND FINDINGS
With regard to claim (1), Complainant claimed that other employees are assigned to do either jitney or forklift duties but he was assigned to perform both. We find that the matter of what assignments Complainant was to perform is an issue that can involve harm to the terms, conditions, or privileges of Complainant's employment. We also note that the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend on the particular circumstances. See also EEOC Compliance Manual No. 915.003 (May 20, 1998) (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 states a claim). Applying these legal principles, we find that claim (1) states a claim.
As for claim (2), we find that by itself the Manager's alleged instructions to the Supervisor to discipline Complainant if he refused work assignments did not cause harm to a term, condition, or privilege of Complainant's employment. Complainant has not claimed that disciplinary action was taken against him with regard to his rejection of an assignment. Thus, we find that Complainant did not state a claim as to claim (2).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is MODIFIED. The Agency's dismissal of claim (2) on the grounds of failure to state a claim is AFFIRMED. The Agency's dismissal of claim (1) on the grounds of failure to state a claim is REVERSED. Claim (1) is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. See29 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-l6(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. See29 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. See29 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. See29 C.F.R.S. 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. See29 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)
*4 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:
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 11, 2012
__________________
Date