U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120180329 Agency No. 4E553002317 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 26, 2017, dismissing his complaint of unlawful employment discrimination in violation of 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 Business Mail Entry Unit (BMEU) Clerk at the Agency's Twin Cities facility in Fridley, Missouri. On September 13, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (72) and reprisal when: 1. On dates in March, April and May of 2017, Complainant was assigned to work in the recycling - Stamp Destruction Unit as punishment for having 20 minutes of penalty overtime on March 20, 2017, his sick leave request was denied; and after he complained about the unsafe shredding unit and unfair assignment, his supervisor "abusively scheduled" him to shredding duty at the basement in the Minneapolis Post Office (Room 10); and 2. From May 26, 2017 and ongoing, Complainant was denied use of his sick leave and "management have all been teaming up against [Complainant] with retaliation efforts and excessive assignments to the shredding unit" and "due to the working conditions and abusive assignment" to the re-cycling - Stamp Destruction Unit, he has been out sick. Complainant described himself as an older man, originally from South Korea. Complainant was nearing retirement age. Complainant was a Senior Clerk assigned to the Bulk Mail Entry Unit (BMEU) in Fridley, Minnesota. Complainant states that people must first pass rigorous training before they can take the job. The BMEU is normally a unit populated by older, more senior workers. He claims that he was issued a punishment for going into penalty overtime on March 20, 2017, which was not his fault. He was assigned continuous onerous duties in the basement in Minneapolis, rather than being allowed to continue working his duties as a Senior Clerk at his usual location and working conditions. He disputed the Agency's position that the assignment was part of his regular bid position. After he complained to his supervisor and the union that he was being disrespected and not valued, his supervisor allegedly extended his stint in the Stamp Destruction Unit. Because of being assigned to work in the unit in the basement, he claims that he became depressed and sick. He called in sick on May 26, 2017, and did not report back to work. He claims that he was continuously denied sick leave and states that he would still be employed, but-for the alleged discriminatory treatment. Complainant requested that he be allowed to use up his sick leave. The record shows that management had a policy that allowed employees who were close to retiring to use up their sick leave. Complainant was told that he could not take sick leave in one block, as he requested, without medical documentation. Agency Decision The Agency issued a final decision dismissing the complaint for failure to state a claim. Although the Agency acknowledged that Complainant was seeking the recovery of his lost Sick Leave, the Agency concluded that "there is no evidence in the record that [Complainant] was subjected to any adverse employment action or that [he] was denied any entitlement in relation to a term, condition or privilege of employment as a result of the claims #1 and #2. The Agency reasoned that the cited basis of his retaliation claim was that he received "punishment for having 20 minutes of penalty overtime," which the Agency found did not state a claim. The Agency reasoned that he had not previously engaged in an EEO activity or participated in the EEO process. Next, the Agency stated that he was claiming that he had been the victim of mismanagement and that mismanagement was not a protected basis under Title VII. The Agency decision acknowledged that Complainant alleged that he "became very sick, physically and mentally from recycling and shredding duty under unruly and terrible workplace conditions for 21 days straight within a two-month period." The Agency stated that "the proper procedure would be to file a claim covered by the Federal Employees' Compensation Act (FECA)." The Agency also reasoned that "directing employees in the performance of their duties and ensuring the efficiency of the operation entrusted to them is a matter which is clearly within the realm of managerial prerogative and authority." The Agency stated "we do not find that the alleged incident was sufficiently severe or pervasive to state a claim of hostile work environment / discriminatory harassment. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the EEO process is the appropriate venue for the issue at hand. Complainant states, that, "but for the discrimination, [Complainant] would not be out of work and he would not have lost so much." Complainant also states "this treatment of [him] is consistent with prior behaviors by postal management against the aged or against others of different nationalities or origins." He maintains that he should not be deprived of his right to pursue his claims under the EEO laws and he should not be forced to seek relief under the Workers' Compensation Law or FECA. ANALYSIS AND FINDINGS 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). In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging that he had been subjected to a series of related incidents of disparate treatment based on his age and in retaliation after he objected to being forced to work outside of his regular duties under onerous, unhealthy conditions, in the basement and being denied the use of his sick leave. Complainant stated that, after he raised a complaint through the APW union based on the terrible, unruly, unhealthy working conditions and after Complainant informed the supervisor that he should not be required to perform the functions outside of his normal duties, his supervisor assigned him 14 more days of the same work. No other Senior Clerk was assigned to those conditions for that duration, except for him. He claims that younger workers were not similarly assigned. We construe Complainant as alleging claims of age discrimination and retaliation that were part of an ongoing pattern of targeting him, as an older employee who had complained, to onerous tasks, and continued, with the last alleged incident occurring on or around May 26, 2017. In short, he claims that he was denied a fair opportunity to be employed under the favorable working conditions that the Agency provided to younger employees who were not nearing retirement age and who had not complained to their supervisor or the union. We recognize that there is an issue regarding whether Complainant had engaged in protected activity, but that issue goes to the merits of the complaint and does not determine the procedural issue of whether Complainant stated a justiciable claim under the EEO laws. See Samuel R. v. U.S. Postal Serv., EEOC Appeal No. 0120161250 (May 27, 2016). Complainant has shown an injury or harm 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). Further, we find that the record supports our finding that he raised sufficient ADEA claims. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below. 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 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. 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 tends 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 (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 (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 February 7, 2018 __________________ 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 0120180329 2 0120180329