U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willie P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120180204 Agency No. 4G770021517 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 24, 2017 dismissal of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Granville Elder Station in Houston, Texas. On August 23, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic), disability (physical), and reprisal (prior protected EEO activity) when:2 1. On May 12, 2017, he became aware that his manager ("M1") delayed his receipt of a Step B grievance decision; 2. On May 26, 2017, Management failed to honor the compliance deadline in an EEO Settlement Agreement for Agency No. 4G770012217; and 3. On May 27, 2017, an Acting Supervisor ("S1") made a discriminatory comment to him.3 Prior to the instant complaint, Complainant pursued an EEO complaint with the Agency (Agency No. 4G770012217) which was resolved when the parties entered into a settlement agreement ("the Agreement"). Among other things, the Agreement required the Agency to take certain actions by May 26, 2017. Complainant alleges that he also engaged in EEO activity when he filed a grievance, concerning alleged violations of EEO statutes. As the grievance named M1 as the responsible management official, Complainant cites the grievance as the subject of the instant reprisal claim. Shortly before May 12, 2017, the grievance progressed to "Step B," and a decision was issued in Complainant's favor. The Dispute Resolution Team ("DRT") allegedly sent a copy of the decision to both Complainant and M1, however, Complainant did not receive his copy. Complainant alleges that on May 12, 2017, a clerk informed him that M1 had been intercepting Complainant's interoffice mail and had kept it in a cabinet in his office for "a few days." According to M1, he only had his copy of the Step B decision, and he showed it to Complainant and explained it. Complainant argues on appeal that M1 "lied" to him by saying he did not know where Complainant's mail was when Complainant asked about the decision letter, preventing Complainant from receiving the letter for several days. Meanwhile, Complainant alleges that May 26, 2017 came and went without Agency compliance with the settlement agreement. On May 27, 2017, Complainant learned that the exit closest to his office had been locked. Due to a physical disability which required him to wear braces on both of his legs, Complainant's speed and mobility were limited, and he became concerned for his safety if an emergency arose and he did not have a nearby exit. Complainant notified S1, and asked S1 what would happen if the locked exit was the only exit available in an emergency situation. Complainant alleges that S1 responded: "we're going to send you out first to get shot, take all the bullets, but we're going to buy you a taco." Complainant reported S1's response to M1, who allegedly responded: "you don't eat or like tacos?" Complainant understood S1 and M1's "taco" comments to be discriminatory references to his national origin. Given the recent settlement agreement and grievance, Complainant suspected reprisal, along with disability and national origin discrimination, prompting him to file the instant complaint. The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Under 29 C.F.R. § 1614.107(a)(1) 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 disabling 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 (Apr. 21, 1994). For claims of reprisal, such adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "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. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Claim 1 - Delayed receipt of Grievance Decision Generally, claims involving other administrative proceedings, including the negotiated grievance procedure and its related processes, fail to state a claim. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994) The Commission's rejection of such claims includes cases like this one; where the alleged discriminatory action concerned a management official's actions in relation to the issuance of a grievance, in which the official was named. See Eng v. United States Postal Serv., EEOC No. 0120052627 (Jun. 28, 2005) (allegation that the "manner" in which the complainant's grievance was handled was discriminatory, constituted an impermissible collateral attack on the agency's negotiated grievance procedure.) Claim 1 was properly dismissed as a collateral attack on another forum's proceeding. The proper forum for Complainant to challenge the manner in which his grievance was issued, is through the negotiated grievance procedure itself. Claim 2 - Breach of EEO Settlement Agreement Under 29 C.F.R. § 1614.504(a), any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). Therefore, an allegation of breach cannot be raised as a discrimination claim, which is subject to a different legal analysis. Instead, 29 C.F.R. § 1614.504(a) provides that if a complainant believes that an agency failed to comply with the terms of a settlement agreement, he or she shall notify the EEO Director, in writing, of the alleged non-compliance within 30 days of when the complainant knew or should have known of the alleged non-compliance. Therefore, while the Agency correctly dismissed Complainant's breach claim as a new complaint, it should have processed it in accordance with the procedures detailed in 29 C.F.R. § 1614.504(a). We will remand it to the Agency for such processing. Claim 3 - Derogatory Comment Regarding Claim 3, the Agency dismissed it citing to the principle that generally an allegation concerning an isolated instance of a derogatory remark does not state a claim of discrimination. However, we find that a fair reading of the complaint, in conjunction with the related EEO counseling report and Complainant's statement on appeal, indicates that the Agency mischaracterized the claim by focusing solely on the alleged derogatory comment. Instead, we find that the claim is more properly characterized as a failure to provide reasonable accommodation for Complainant's disability (based on his disability, national origin and/or retaliatory animus). On appeal, Complainant explains that his concern about the nearest emergency exit becoming inaccessible was mostly due to the mobility limitations he experiences as a result of his physical disability. He alleges that neither S1 nor M1 addressed this underlying concern. Instead, he contends that both officials made light of Complainant's concern, including S1 stating, "we're going to send you out first to get shot, take all the bullets." Therefore, we find Claim 3 states a claim warranting investigation. Agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. 29 C.F.R. §1614.101 This duty extends to every aspect of agency personnel policy and practice in the employment, development, advancement, and treatment of employees. Agencies are obligated to "insure that managers and supervisors perform in such a manner as to insure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity." 29 C.F.R. §1614.102(5); Wolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (Jun. 4, 2009). CONCLUSION Accordingly, we AFFIRM the Agency's dismissal of Claim 1, MODIFY its dismissal of Claim 2, and REVERSE the Agency's dismissal of Claim 3. Claims 2 and 3 are hereby REMANDED for further processing in accordance with the ORDER below. ORDER (E1016) Claim 3 The Agency is ordered to process the remanded claim (failure to accommodate based on disability, national origin and retaliation) 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 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. Claim 2 The Agency is ordered to process Complainant's claim of breach of the settlement agreement for Agency EEO Complaint No. 4G770012217 in accordance with the procedures detailed in 29 C.F.R. § 1614.504(a). The Agency shall issue a final determination on Complainant's breach claim within forty-five (45) calendar days of the date of this decision, with appropriate appeal rights to this Commission. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 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) within 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's signature Carlton M. Hadden, Director Office of Federal Operations December 27, 2017 __________________ Date 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 Complainant's formal complaint alleged discrimination on the basis of reprisal only. However, on appeal, he clarified his complaint to include national origin and disability, as well. See Logan v. United States Postal Serv., EEOC Appeal No. 01980770 (Oct. 23, 1998) (finding the Commission gives complainants "liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing their charges.") citations omitted; see also, e.g. Castillo v. United States Postal Serv., EEOC Appeal No. 01956860 (Mar. 22, 1996) (where the bases of discrimination were not made clear until appeal). 3 Date provided by Complainant on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180204 2 0120180204 8 0120180204