Ayana C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 14, 2019

2019002190 (E.E.O.C. Aug. 14, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ayana C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 2019002190

Agency No. 4C170010718

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (Dismissal) dated January 23, 2019, 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 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 Rural Carrier
Associate at the Agency’s Lancaster Annex facility in Lancaster, Pennsylvania.

On January 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of sex (female) and disability (Post Traumatic Stress Disorder)
when, on September 8, 2018 and on other occasions, Complainant’s supervisor subjected
Complainant to harassment.

The Agency characterized the claim differently, stating that Complainant was alleging that, “[o]n
September 8, 2018, and other dates not specified, the supervisor approached you from behind,
snapped instructions at you, spoke to you in a snarky tone and followed closely behind you.” The

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.
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Agency dismissed the claim for failure to state a claim and further found that Complainant’s
formal complaint was untimely filed.

The instant appeal followed.

ANALYSIS AND FINDINGS

An Agency shall dismiss a complaint that fails to comply with the time limits contained in 29
C.F.R. § 1614.106. Section 106(b) states that a complaint must be filed within 15 days of receipt
of the Notice of Right to File (Notice).

Here, the Agency maintains that the Notice was received and signed for by Complainant on
December 13, 2018, but the postmark on Complainant’s Formal Complaint envelope shows that
she did not file her formal complaint until January 2, 2019, which is beyond the 15-day limit. On
appeal, Complainant has submitted affidavits from herself and her spouse, both attesting to the
fact that Complainant was out of town on the date in question and did not receive the Notice until
December 18, 2018. Complainant further disputes the signature on the signature card, saying, “I
did not sign for this package and the signature on this package is not mine. The signature was
printed [first initial, last name]. I never print my signature and I always sign my full first name,
middle initial, and last name in cursive.” In view of the above we find that Complainant has
established that she did not receive the Notice until December 18, 2018, and thus her formal
complaint was timely-filed.

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. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. Where a complaint does not
challenge an agency action or inaction regarding a specific term, condition or privilege of
employment, such as the complaint at issue here, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.

The Agency, describing Complainant’s claim as consisting of an allegation that Complainant’s
supervisor “approached you from behind, snapped instructions at you, spoke to you in a snarky
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tone and followed closely behind you,” found that the action alleged was insufficiently severe to
state a valid claim of harassment. On appeal, Complainant contends that her supervisor would
sneak up on her from behind and then yell at her in a deliberate attempt to provoke
Complainant’s PTSD symptoms for her own amusement. Complainant further alleges her
complaint included a denial of a request for reasonable accommodation. A review of the Formal
Complaint shows that in describing the alleged acts of discrimination, Complainant wrote
“please see attached document” but it is unclear from the record what document Complainant is
referring to as the only associated documents consist of correspondence from her attorney
establishing her legal representation of Complainant and additional correspondence attesting to
the fact Complainant did not receive and/or sign for the Notice on December 13, 2018.

The informal complaint characterizes the complaint as follows:

The counselee stated that on September 8, 2018, the management official
approached her from behind and snapped at her to go get her packages. The
counselee stated that as she was walking to get her packages, the management
official was racing behind her. The counselee stated she was startled by the
management official's action. The counselee stated she told the management
official she was tired of being harassed by her and that this was her last day. The
counselee stated the management official told her several times she needed to sign
a resignation form. The counselee stated she told the management official she
didn't need to do anything for her, turned her badge in and walked out.

Given Complainant’s clarification of the harassment allegation on appeal and her explanation to
the Counselor that she was startled by the management official’s action, we find that
Complainant states a valid claim of harassment. We find that an allegation that a management
official deliberately sought to exacerbate an employee’s medical condition for their own
amusement to be an action that is sufficiently severe to state a claim of harassment.

We further find, however, that the record is completely devoid of any mention by Complainant
of being denied a reasonable accommodation. Section 1614.107(a)(2) states that an Agency shall
dismiss matters that have not been brought to the attention of an EEO Counselor and are not like
or related to matters brought before the Counselor. We therefore find that Complainant may not
now seek to introduce a denial of reasonable accommodation claim as such a claim is not like or
related to the matters raised before the Counselor. With regard to the other actions raised by
Complainant on appeal, we find them to be allegations of additional instances of harassment that
should be treated as part and parcel of the overall claim and not separate, individually actionable
claims.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REVERSE the Dismissal and REMAND the claim for further
processing in according with this decision and the Order below.

ORDER (E0618)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108
et seq. The Agency shall acknowledge to the Complainant that it has received the remanded
claim 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.

As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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
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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 (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
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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

August 14, 2019
Date