Laurence L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 20, 2019

2019002966 (E.E.O.C. Aug. 20, 2019)

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

Laurence L.,1
Complainant,

v.

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

Appeal No. 2019002966

Agency No. 1B-115-0012-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated January 17, 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.

BACKGROUND

During the period at issue, Complainant worked as a Parcel Post Distribution Machine Clerk, PS-
6, at the Agency’s Processing and Distribution Center in Flushing, New York.

On December 28, 2018, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against him based on race, national origin, color, and age when:

1. on an unspecified date Tour 3 breaks and lunch times were changed; and

2. on August 10, 2018, Complainant felt harassed and singled out when he was
questioned about his return from a break.

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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In its January 17, 2019 final decision, the Agency dismissed the formal complaint on two
grounds. The Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2), finding that
the claim was never brought to the attention of an EEO Counselor and was not related or like a
matter that has been raised to an EEO Counselor. The Agency dismissed claim 2, pursuant to 29
C.F.R. § 1614.107(a)(1), finding that the alleged August 10, 2018 incident was not sufficiently
severe or pervasive to set forth an actionable claim of harassment. The Agency further found
that Complainant was not aggrieved.

The instant appeal followed. On appeal, Complainant argues that he was “deeply hurt” after the
August 10, 2018 incident (in claim 2) occurred. Complainant explains that he tried to help
management by taking late breaks and late lunches every day, but management “tried to give him
discipline” and did not appreciate his efforts to help. Complainant states that after the August
10, 2018 incident, his “heart and mental could not get balanced for those two-hour late lunches
[he] took.”

ANALYSIS AND FINDINGS

Failure to Raise Matter with EEO Counselor - Claim 1

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall
dismiss a complaint or portion thereof which raises a matter that has not been brought to the
attention of an EEO Counselor and is not “like or related” to a matter on which the complainant
has received counseling.

Here, a review of the EEO Counselor’s report shows that Complainant did not raise the issue of
his Tour 3 lunch and break times being changed. Rather, Complainant raised this issue for the
first time in his formal EEO complaint. There is no indication that this claim was like or related
to the matters Complainant discussed during EEO counseling – Complainant’s supervisor
questioning him after he returned from his break on August 10, 2018. As such, we find that
claim 1 was properly dismissed for failure to raise the matter with the EEO Counselor.

Failure to State a Claim - Claim 2

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).

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Here, there is nothing in the record supporting a claim that Complainant was adversely affected
by the alleged incident. Specifically, Complainant does not allege that he was disciplined or
penalized when he was questioned about his whereabouts after returning from his break.
Complainant states that the Manager of Distribution Operations (“M1”) “tried” to harass and
“discipline” him when M1 informed Complainant’s supervisor (“S1”) that he saw Complainant
by a machine located on the first floor when Complainant should have reported to a machine
located on the third floor. Complainant claims that S1 questioned him about his whereabouts
after M1 had informed S1 that he saw Complainant on the first floor. On appeal, Complainant
states that management “tried to give him discipline.” Thus, there is no indication that
Complainant suffered a present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy.

Moreover, to the extent that Complainant claims that he was the victim of harassment, we do not
find that this isolated incident is sufficiently severe or pervasive to set forth an actionable claim
of harassment. Here, Complainant claims that S1 questioned him when he returned from his
break but did not question the other two employees who were late returning from their break.
See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). The alleged
incident is of a type that typically arise out of workplace conflicts or communications. However,
EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as
to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc,.
523 U.S. 75, 81 (1998). Therefore, Complainant’s complaint of harassment fails to state a claim
upon which relief can be granted pursuant to 29 C.F.R. § 1614.107(a)(1).

The Agency’s final decision dismissing the formal complaint for the reasons discussed above 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.
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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.
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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

August 20, 2019
Date