Percy K., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency. Request No. 0520120403 Appeal No. 0120120582 Agency No. 4C-150-0068-11 GRANT Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120120582 (March 16, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). ISSUE PRESENTED The issue presented is whether the appellate decision, clearly erred in finding that Complainant did not suffer a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, when the Agency allegedly adjusted the physical requirements of his mail delivery route because of his sex and prior EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Upper St. Clair Branch in Pittsburgh, Pennsylvania. Complainant delivered mail for a string of five routes (03, 06, 07, 12, and 16) during the regularly assigned carriers' scheduled days off. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity when the Agency adjusted his route, effective on or about June 13, 2011. Specifically, Complainant alleged that the Agency replaced the best route in his string (route 07) with the worst route in the office (route 14), which involved over 12 miles of walking. According to the EEO Counselor's Report, Complainant subsequently bid off the adjusted string of routes and onto a new string of routes. Management stated that Complainant never carried the adjusted string of routes. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that Complainant did not suffer a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. On appeal, Complainant argued that he experienced adverse effects as result of the Agency's route adjustment. Specifically, Complainant asserted that the new string of routes aggravated his medical condition and that he could no longer perform his regular duties without pain and discomfort. In addition, Complainant asserted that his hourly pay decreased due to the Agency's actions. The appellate decision affirmed the Agency's dismissal of the complaint, finding that Complainant did not suffer a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Specifically, the decision determined that the complaint involved an alteration of a routine work assignment and that Complainant did not allege that he suffered any job-related loss or harm as a result of the rearrangement. The decision also found that the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in protected activity. ARGUMENTS ON RECONSIDERATION In his request for reconsideration, Complainant argued that the appellate decision erred in finding that he did not suffer a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Specifically, Complainant stated that the Agency altered his string of routes by replacing a mounted delivery route with a long walking route. In addition, Complainant explained that he was forced to bid on a new string of routes because he was physically unable to deliver the adjusted string of routes due to a medical condition. Finally, Complainant maintained that he has suffered a foot injury due to the extreme amount of walking on his new string of routes and that his new string of routes pays less. The Agency did not submit a brief or statement in opposition to Complainant's request. ANALYSIS After reconsideration of the appellate decision, the entire record, and Commission precedent, the Commission finds that the request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to grant the request. Specifically, we find that the appellate decision involved a clearly erroneous interpretation of material fact or law. In Greenstein v. U.S. Postal Service, EEOC Request No. 0520110467 (Nov. 14, 2011), the Commission held that a route adjustment which changed the physical requirements of a complainant's job to such an extent that it became physically difficult for him to perform, was sufficient to constitute a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Before the adjustment, the complainant drove a postal vehicle to deliver mail; after the adjustment, the complainant had to physically walk on foot and carry the mail on his shoulders with a 35-pound mail satchel. The complainant alleged that it was physically difficult for him to perform the adjusted route and that he had suffered back injuries as a result. The Commission found that the complaint stated a claim and reversed the Agency's dismissal of the complaint. We find Greenstein to be very similar to the instant case, in that Complainant alleged that the Agency's route adjustment changed the physical requirements of his job to such an extent that it became physically difficult for him to perform. Before the adjustment, Complainant had a mounted delivery route; after the adjustment, Complainant had a 12 mile walking route. Complainant alleged that he was physically unable to perform the adjusted route, was forced to bid on a new string of routes due to the route adjustment, and suffered physical injuries and financial harm as a result. Accordingly, we find that Complainant suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, when he claimed sex and reprisal discrimination for his route adjustment. CONCLUSION After reconsidering the previous decision, the entire record, and Commission precedent, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. § 1614.405(c). The appellate decision involved a clearly erroneous interpretation of material fact or law, and it is the decision of the Commission to GRANT the request. The Commission REVERSES its decision in Appeal No. 0120120582 and the Agency's final decision, and REMANDS Complainant's complaint to the Agency for further processing in accordance with the Order below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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. 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: ______________________________ Bernadette B. Wilson Acting Executive Officer Executive Secretariat ____4/7/14______________ Date 2 0520120403 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, DC 20507 2 0520120403