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

Equal Employment Opportunity Commission

Jan 8, 2020

Appeal No. 2019005813 (E.E.O.C. Jan. 8, 2020)

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

Elenor S.,1
Complainant,

v.

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

Appeal No. 2019005813

Agency No. 1E-971-0015-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency final decision, dated July 3, 2019, pertaining to 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Mail handler at the Agency’s Processing &
Distribution Center in Portland, Oregon.

Believing that she was subjected to unlawful discriminatory harassment by her manager,
Complainant contacted an EEO Counselor. With the EEO Counselor, Complainant identified the
bases for her concerns as sex and reprisal for previously filing a grievance. Informal efforts to
resolve Complainant’s concerns were unsuccessful. On June 4, 2019, Complainant filed the
instant formal complaint based on reprisal.

The Agency framed the events comprising the harassment as follows:

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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Since February 13, 2019, management retaliated by

a. stalking and moving Complainant in order to watch her while she worked;

b. conducting an Investigative Interview with Complainant for leaving her machine
early;

c. aggressively paging Complainant and threatening her; and,

d. disallowing Complainant her five-minute wash-up at the end of the day.

In its July 3, 2019 final decision, the Agency dismissed the formal complaint for failure to state a
claim. The Agency found that retaliation for filing a grievance is not “prior protected activity”
under the EEO process. The Agency acknowledge that Complainant also raised the basis of sex
in counseling, but that Complainant did not include this basis in her formal complaint.
Therefore, Complainant was considered to have abandoned the basis. Finally, the Agency stated
that Complainant cannot, for the first time on appeal, cure a previously defective complaint.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

In the instant case, Complainant has alleged she was retaliated against because she previously
filed a grievance regarding her manager. When a complaint of reprisal fails to identify EEO or
other protected activity, the complaint is not within the purview of Title VII and must be
dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No.
05980273 (June 4, 1999). Throughout the record, Complainant identifies the reprisal as based
upon her prior grievance. The Commission has held that participation in the grievance process
may be a protected activity, if claims of discrimination are raised therein. See Shively v. Dep’t
of the Army, EEOC Request No. 05960481 (Dec. 31, 1996). However, here there is no evidence
that the earlier grievance contained any nexus to the discrimination statutes enforced by the
EEOC. While the instant record does not contain a copy of the grievance itself, it does include a
Step 1 settlement, dated February 11, 2019, reflecting that the matter at issue was the Manager
performing mail handler work for two hours.
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In contacting the EEO Counselor, Complainant explained that she had “filed a grievance on an
issue within the rights of my contract . . . .” On appeal, Complainant does not address the bases
of her complaint. Therefore, we find that Complainant has not alleged reprisal within the
purview of the EEO process.

As for the additional basis of sex, the Agency correctly noted that the basis was raised in
counseling, but was not included in the formal complaint. In its decision, the Agency considered
the basis to have been abandoned. On appeal, Complainant does not dispute the Agency’s
conclusion nor make any mention of the basis of sex.

Given the totality of circumstances as discussed above, we find that the Agency’s dismissal of
the complaint for failure to state a claim was proper.

CONCLUSION

Accordingly, the Agency’s final decision dismissing the formal 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.
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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. 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

January 8, 2020
Date