U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * JACINTO Q,1 COMPLAINANT,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (EASTERN AREA), AGENCY.
Appeal No. 0120171710
Agency No. 1C-441-0006-17
October 6, 2017
 
DECISION
 
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 5, 2017, dismissing his 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed, in part, pursuant to 29 C.F.R. § 1614.107(a).
  
BACKGROUND
 
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Manager at an Agency Processing and Distribution Center in Cleveland, Ohio. On November 14, 2016, Complainant initiated EEO contact alleging that the Agency discriminated against him based on race (African American), sex (male), age (50), and disability (impairment of legs) when, effective September 17, 2016, the Agency involuntarily removed Complainant from his position and assigned him to an Annex, and, on October 21, 2016, the Agency held a pre-disciplinary interview with Complainant. The EEO Counselor's Report reiterates the involuntary reassignment claim, and indicates that, on January 17, 2017, the Agency placed Complainant on a Performance Improvement Plan (PIP).2 Informal efforts to resolve Complainant's concerns were unsuccessful.
 
On February 27, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and disability when:
1. on September 17, 2016, the Agency involuntarily removed Complainant from his position and placed him in a temporary assignment at the Cleveland Annex,
2. on December 17, 2016, the Agency forced Complainant to work six days and to work the sixth day without pay,
3. on February 10, 2017, the Agency placed Complainant in an absence without official leave (AWOL) status on a travel day,
4. on January 26, 2017, a Senior Plant Manager informed Complainant that his name was submitted for removal from Agency employment, and
5. on January 17, 2017, the Agency issued Complainant a PIP.
 
On March 28, 2017, the Agency issued a final action dismissing claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact, claims (2) through (4) pursuant to 29 C.F.R. § 1614.107(a)(2) for raising a matter that has not been brought to the attention of a Counselor and is not like or related to such a matter, and claim (5) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The instant appeal from Complainant followed.
  
ANALYSIS AND FINDINGS
  
Claim 1
 
For claim (1), the record discloses that the alleged discriminatory event was effective on September 17, 2016, but Complainant did not initiate contact with an EEO Counselor until November 14, 2016. Complainant's contact is beyond the forty-five (45) day limitation period provided in 29 C.F.R. § 1614.105(a)(1). EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for dismissal of complaints that fail to comply with the time limits contained in 29 C.F.R. § 1614.105. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We find the Agency's dismissal of claim (1) proper.
  
Claims 2, 3, and 4
 
We find that Claims (2) through (4) were properly dismissed pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2), which provides that the agency shall dismiss a complaint or a portion of a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Mac K. v. U.S. Postal Service, EEOC Appeal No. 0120152577 (Dec. 8, 2015).
 
Complainant's informal complaint shows that, on November 14, 2016, Complainant sought EEO counseling regarding an October 21, 2016 pre-disciplinary interview and a September 17, 2016 involuntary reassignment. The EEO Counselor's Report shows that Complainant sought counseling on his reassignment and placement on a PIP. However, in his formal complaint, Complainant alleged the adverse actions in claims (1) through (5). Claim (2) pertains to work without pay in December 2016. Claim (3) is regarding placement in AWOL status in February 2017, and claim (4) pertains to submission of Complainant's name for removal from employment in January 2017. The record does not show that Complainant sought to add a new claim to his matters pending at the counseling stage. Thus, the Commission agrees with the Agency's decision to dismiss claims (2), (3), and (4) pursuant to 29 C.F.R. § 1614.107(a)(2). Further, we find that claim (4) may be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Assuming claim (4) (referral of Complainant for removal) is true, it does not allege a harm or loss to the Complainant's terms and conditions of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). It would be considered a proposal to remove rather than an actual removal, the latter of which is actionable and the former is not.
  
Claim 5
 
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). The Agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1).
 
Regarding Complainant's claim of placement on a PIP, the Commission has often held that a PIP is a preliminary step to taking a personnel action and, in most instances, by itself does not constitute an adverse action sufficient to render an employee aggrieved. Bret E. v. U.S. Postal Service, EEOC Appeal No. 0120172220 (September 12, 2017). An exception to this is where the PIP has become part of the employee's official personnel file. See 57 Fed. Reg. 12643 (April 10, 1992). Here, page five of the PIP states, "[w]e will also discuss any corrective action that is in your personal[sic] file to determine whether the action has served its purpose in correcting your identified deficiencies." This language in the record suggests that the PIP or related documentation was recorded in Complainant's personnel file or considered in taking an adverse personnel action. Hence, we find that claim (5) states a claim and we remand the matter to the Agency for further processing consistent with this decision and the Order below.
  
CONCLUSION
 
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed as to claims (1) through (4) and reversed and remanded to the Agency regarding claim (5).
  
ORDER (E1016)
 
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 hwithin thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (K0617)
 
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report hwithin thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617)
 
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) hwithin thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
 
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations
Footnotes

1

This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.



2

The PIP, page five in pertinent part, states "[w]e will also discuss any corrective action that is in your personal[sic] file to determine whether the action has served its purpose in correcting your identified deficiencies."