0120121707
06-29-2012
Shandra D. Franks, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Shandra D. Franks,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121707
Agency No. 4G770003212
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Decision) dated February 6, 2012, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Sage Carrier Annex facility in Houston, Texas. On January 13, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (48), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. on October 8, 2011, the starting time for Complainant's shift was changed from 7:30 AM to 8:30 AM; and
2. On an unspecified date, Complainant was denied an assistant.
The Agency dismissed the claims for failure to state a claim. Specifically, the Agency found that Complainant failed to show that she had incurred a harm from the Agency's actions and further found that the assignment of assistants is a "management prerogative" and that Complainant was asking that her personal preference take precedence over a management prerogative. Finally, the Agency found that Complainant failed to establish a claim of harassment.
CONTENTIONS ON APPEAL
Complainant submits no argument on appeal. The Agency requests that we affirm its Decision.
ANALYSIS AND FINDINGS
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 disabled 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. See Diaz v. Dep't of the Air Force, EEOC Request No.05931049 (April 21, 1994). However, Complainant has also alleged that the Agency's actions were in retaliation for her involvement for prior EEO activity. The Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
With regard to claim 1, we note that the Commission has ruled that a change in start time of one hour or less does not render an employee sufficiently aggrieved to state a viable legal claim of discrimination. See Anthony v. United States Postal Service, EEOC Appeal No. 0120102068 (August 20, 2010); Holmes v. United States Postal Service, EEOC Appeal No. 0120070656 (March 25, 2009). Complainant has presented no reason to distinguish her case from these prior decisions on the matter relating to her start time change. We therefore find that, with regard to her claim of discrimination based on race, sex, and age, Complainant fails to state a claim. Complainant does, however, state a valid claim of reprisal when her start time was changed because such a change is reasonably likely to deter Complainant or others from engaging in protected activity.
With regard to claim 2, the Agency found that Complainant was not aggrieved because "the decision to provide auxiliary assistance is clearly a matter of managerial prerogative. You are asking that your personal preference take precedence, but the assignment of work is a management prerogative." Such a response, however, does not address the issue at hand, which is whether Complainant incurred a harm or whether the Agency's action constitutes an action that is reasonably likely to deter Complainant or others from engaging in protected activity. Many, if not most, actions that may potentially cause an employee to suffer a harm or loss may also be termed "management prerogatives," actions like removal or other discipline for cause, nonselection for a desired position, or the denial of leave to name just a few. The relevant issue is whether such actions are done for legitimate nondiscriminatory reasons or in an effort to discriminate or retaliate against an employee. As such, the Agency's response that the action was within "management's prerogative" comes very close to a claim by the Agency that its action was done for legitimate nondiscriminatory reasons. Such a response, however, addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. Whether or not the Agency's denial of the services of an assistant was legitimately within management's prerogative is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII and the ADEA. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Following a review of the record, the Commission finds that the denial of an assistant fails to state a claim of discrimination based on race, sex, or age because Complainant has not shown how such a denial caused a harm or loss. However, as with the change of Complainant's start time, we find that Complainant states a valid claim of reprisal because if the Agency is basing its decision regarding who receives help from an assistant on whether or not employees engaged in protected activity, which is essentially what Complainant is alleging, the denial of an assistant for those who do engage in protected EEO activity is an action that is reasonably likely to deter Complainant or others from such engagement.
With regard to harassment, the Commission finds that the complaint fails to state a claim under the EEOC regulations because complainant failed to show that she was subjected to unwelcome verbal or physical conduct involving her protected classes, that the harassment complained of was based on her statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
CONCLUSION
Following a review of the record, we find that Complainant fails to state claims of discrimination based on race, sex, and age for both claims 1 and 2. We further find however, that Complainant states valid claims of reprisal for both claims 1 and 2. We therefore AFFIRM the Decision in part and REVERSE in part, and we REMAND the matter to the Agency for additional 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 (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. 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 (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
June 29, 2012
__________________
Date
2
0120121707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121707