Jared F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jul 23, 2019

2019003150 (E.E.O.C. Jul. 23, 2019)

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

Jared F.,1
Complainant,

v.

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

Appeal No. 2019003150

Agency No. 4F-900-0033-19

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated February 28, 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked for the Agency as a Safety Specialist at the
Agency’s Processing & Distribution Center in Los Angeles, California.

Believing that he was subjected to harassment and a hostile work environment, Complainant
contacted an EEO Counselor on September 12, 2018, alleging that a Caucasian female co-worker
(hereinafter “Co-worker”) falsely accused him of sexual harassment. The same individual was
later given a higher-level position. Informal efforts to resolve Complainant’s concerns were
unsuccessful.

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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On February 5, 2019, Complainant filed a formal complaint. Therein, Complainant explained
that “after a meeting in the Safety Office, [Co-worker] accused him of sexual harassment . . . in
the presence of others.” Thereafter, when Co-worker was asked what Complainant said or did
that she considered sexual harassment, she replied: “I should not have said it. I was mad at you. I
am sorry.”

In its February 28, 2019 decision, the Agency dismissed the formal complaint for failure to state
a claim. The Agency reasoned that no adverse action was taken against Complainant. Further,
to the extent that he could be alleging discrimination due to being subjected to any investigation
of alleged sexual harassment, the Agency found that such matters fail to state a claim because the
Agency is legally obligated to conduct such investigations.

The Agency also dismissed the formal complaint for untimely EEO Counselor contact. The
Agency found that Complainant’s initial EEO Counselor contact was 73 days after the allegedly
discriminatory incident and he did not provide any explanation for the delay.

Complainant filed the instant appeal, without submitting any contentions or brief.

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).

Here, Complainant contends that he was subject to a hostile work environment when a co-worker
accused him of sexual harassing her. The Commission's long-standing guidance on employer
liability for harassment by co-workers states that an employer is liable if it knew or should have
known of the misconduct and fails to take immediate and corrective action. 29 C.F.R. §
1604.11(d). Because agencies are required to conduct such investigations, we find that
Complainant is not aggrieved and he fails to state a claim. See Rogers v. Department of Defense,
EEOC Request NO. 05940157 (February 24, 1995) (Commission found that a claim which arose
from the agency's investigation of a complaint of harassment, failed to state a claim, since the
agency was legally obligated to investigate a complaint of harassment).

In light of our disposition, we shall not consider whether the formal complaint was also properly
dismissed on alternative grounds.
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CONCLUSION

Accordingly, the Agency’s decision is hereby 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.
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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

July 23, 2019
Date