Detra W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

2019000064 (E.E.O.C. Oct. 31, 2018)

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

Detra W.,1
Complainant,

v.

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

Appeal No. 2019000064

Agency No. 4J630009418

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 19, 2018, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and 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 Postmaster at the
Agency’s Post Office facility in Norris City, Illinois.

On June 19, 2018, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of sex (female), disability, and age when: (1) on dates not
specified in 2016, a manager harassed her; (2) on a date not specified in 2016, a manager
controverted her Office of Workers’ Compensation (OWCP) claim; and (3) on April 21, 2018,
she was issued a proposed termination of employment.

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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The Agency dismissed claim 1 and 2 for untimely EEO counselor contact, and claim 3 pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The instant appeal followed.

ANALYSIS AND FINDINGS

Claims 1 and 2

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

The record discloses that the last alleged discriminatory event occurred sometime in 2016, but
Complainant did not initiate contact with an EEO Counselor until May 3, 2018, which is well
beyond the forty-five (45) day limitation period. On appeal, Complainant did not present any
arguments that would justify waiving the time limits for these claims.

Claim 3

Claim 3 concerns the proposal to remove Complainant from her position for having been on
leave without pay for over a year. 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).

Here, we concur with the Agency that Complainant failed to allege sufficient facts, which if
proven true and considered together, would establish that she suffered harm or loss with respect
to a term, condition, or privilege of employment for which there is a remedy. Complainant was
not removed from her position, and the disputed action was only a proposal never effectuated.
Rather, the Agency states that Complainant took disability retirement, effective May 7, 2018. 29
C.F.R. § 1614.107(a)(5) permits the dismissal of a claim that alleges a proposal to take a
personnel action, where the proposal never became effective. Therefore, the Agency correctly
dismissed the termination claim with regard to alleged discrimination on the bases of sex, age
and/or disability. The exception to this rule is where the complainant alleges that a proposed
action was part of a retaliation claim. Here, Complainant did raise a retaliation claim, but a fair
reading of her complaint and related EEO counseling report shows she was alleging retaliation
for filing a workers’ compensation claim, which would not qualify as a viable retaliation claim,
as presented in this case, under the 29 C.F.R. Part 1614 EEO complaint process.

2019000064

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Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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 (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.
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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
October 31, 2018
Date