Kristie O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

2019000136 (E.E.O.C. Dec. 12, 2018)

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

Kristie O.,1
Complainant,

v.

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

Appeal No. 2019000136

Agency No. 4K-230-0105-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 25, 2018, 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 relevant time, Complainant worked as a Letter Carrier at the Agency’s Bayside
facility in Virginia Beach, Virginia. Believing that she was subjected to unlawful discrimination,
Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns
were unsuccessful. Subsequently, on June 29, 2018, Complainant filed a formal complaint based
on race, color, and sex.

On July 25, 2018, the Agency issued a final decision. The Agency framed the claims as follows:

1. On unspecified dates, the union steward ignored Complainant’s complaints; and,

2. On unspecified dates between November 7, 2017 and March 2018, Complainant
was observed while performing her job duties.

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.
2019000136

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In its July 25, 2018 decision, the Agency dismissed the formal complaint for failure to state a
claim. The Agency considered claim (1) to be a collateral attack on the collective bargaining
agreement. Regarding claim (2), the Agency reasoned that managers had the discretion to
observe and supervise employees while performing their duties for business efficiency. Further,
the Agency noted that the EEO process should not be used to “challenge routine instructions
directing employees to perform work within their crafts and job descriptions.”

Complainant filed the instant appeal. In her initial appeal statement, without providing any
details, Complainant reiterates her belief that she has been subjected to unlawful harassment. In
an additional statement, dated two months after the filing of the appeal, Complainant describes
sexual harassment at another facility occurring in 2010, as well as harassment from 2013 and
2014.

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 claim (1), Complainant contends that the union steward ignored her complaints. The
Commission agrees with the dismissal of the claim, as the EEO process is not the proper forum
to address concerns with the union. The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of
Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC
Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No.
05930106 (June 25, 1993).

Regarding claim (2), Complainant describes being observed while performing her duties. In one
instance, she was watched from the time she took her mail until she loaded her truck.
Complainant asserts that her leaving and returning times were observed. This claim appears to
describe everyday workplace actions by management. Complainant has not shown that any of
the incidents were offensive or abusive. Moreover, we do not find the alleged events were
sufficiently severe or pervasive to create a hostile work environment. Cobb v. Dep’t of the
Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).

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CONCLUSION

The Agency’s final dismissal of the instant formal complaint for failure to state a claim 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).

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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

December 12, 2018
Date