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

Equal Employment Opportunity Commission

Oct 25, 2018

0120182267 (E.E.O.C. Oct. 25, 2018)

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

Leandro P.,1
Complainant,

v.

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

Appeal No. 0120182267

Agency No. 1K-231-0028-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 29, 2018, dismissing his 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

At the time of events giving rise to this complaint, Complainant worked as a Mail-handler at the
Agency’s Richmond Mail Processing Center, located in Sandston, Virginia. On January 30,
2018, Complainant initiated EEO contact alleging that the Agency discriminated against him
based on sex (male) when, on January 11, 2018, the Agency moved him from his assignment
improperly, and, on an unspecified date, the Agency took Complainant off the clock.

On May 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination based on sex when:

1. on November 8, 2017, the Agency took Complainant off the clock at 3:30
p.m. rather than 7:00 p.m., following an on-the-job injury (which impacted
his wages),

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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2. approximately November 25, 2017, the Agency required Complainant to
attend training due to his work-related injury, and
3. on January 11, 2018, the Agency moved Complainant from his bid
assignment to the Spiral section.

Complainant alleged that the Agency allowed other employees to work his assignment, and that
management would not listen to him or would speak over him.

In a final decision dated May 29, 2018, the Agency dismissed Complainant’s complaint pursuant
to 29 C.F.R. § 1614.107(a). Specifically, the Agency found that Complainant initiated EEO
contact for claims (1) and (2) in an untimely manner pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency stated that Complainant filed three EEO complaints in the past, which displayed his
familiarity with EEO statutory deadlines. Further, the Agency concluded that claim (3) fails to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency stated that a less than
desirable work assignment does not render Complainant aggrieved. The instant appeal from
Complainant followed. On appeal, Complainant reiterated prior contentions.

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,
disabling condition, genetic information, or reprisal. 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 (April 21, 1994). Alternatively, where a complaint does not challenge an agency
action or inaction regarding a specific term, condition or privilege of employment, a claim of
harassment is actionable only if, allegedly, the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions of the complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

We find a fair reading of Complainant’s complaint is one of hostile work environment
harassment based on incidents (1) through (3). Regarding incident (3), the Commission has held
that being required to work outside of one's typical assignment on a temporary or non-ongoing
basis does not generally state a claim. See Complainant v. U.S. Postal Service, EEOC Request
No. 0520140518 (November 26, 2014). However, here, viewing incident (3) with incidents (1)
and (2), Complainant states a viable claim of hostile work environment. See Harris supra.
Further, the January 11, 2018 incident alleged in (3) renders the other two incidents timely. See
National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002).

We find that the Agency improperly dismissed Complainant's claim of harassment.
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CONCLUSION

Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and
REMAND the matter to the Agency for further processing consistent with this decision and the
Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408.
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A civil action for enforcement or a civil action on the underlying complaint is subject to the
deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a
civil action, the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision.
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In the alternative, you may file a civil action after one hundred and eighty (180) calendar
days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. 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 25, 2018
Date