Carlos S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

2020000212 (E.E.O.C. Dec. 18, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carlos S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020000212 Agency No. 4E-890-0049-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 7, 2019, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Carrier Technician, grade O/Q-07, at the Agency’s Silverado Station in Las Vegas, Nevada. On July 20, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to unlawful retaliation for engaging in prior protected EEO activity. On August 7, 2019, the Agency issued a final decision. The Agency addressed the matter raised in the formal complaint as follows: On April 13, 2019, while Complainant was acting as an EEO representative, the manager at Silverado Station was rude and condescending towards him when he was observing a service talk while waiting for the EEO mediation to begin. 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 2020000212 Subsequently, after the EEO mediation, Complainant noticed the manager behind him as he was exiting the building and Complainant asked the manager if she were following him. The manager responded with a scowl and stated that she was making sure Complainant got out of the building. Complainant then asked the manager if she were afraid Complainant would talk to someone on the way out. The manager childishly remarked, “I am not afraid of anyone but God himself.” The Agency dismissed the formal complaint for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Under our long-standing policy, we considered Complainant’s reprisal claim broadly. Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Accordingly, claimed retaliatory actions which can be challenged before EEOC are not restricted to those which affect a term or condition of employment. Rather, Complainant was protected from any retaliatory act that is reasonably likely to deter protected activity. See EEOC Compliance Manual, Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), at II-B citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Here, however, the Agency properly dismissed Complainant’s complaint for failure to state a claim pursuant 29 C.F.R. § 1614.107(a)(1). Complainant’s allegations, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected an adverse employment action or harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Moreover, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). CONCLUSION We AFFIRM the Agency final decision dismissing the formal complaint for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 3 2020000212 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 (S0610) 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. 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. 4 2020000212 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 18, 2019 Date