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

Equal Employment Opportunity Commission

Jan 22, 2020

2019005874 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mandi G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2019005874 Agency No. 4F-913-0054-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 29, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the as a Clerk, PS-6, in a postal facility in Pasadena, California. On July 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American), sex (sex), disability, and in reprisal for prior protected EEO activity when: 1. on February 19, 2019, management told Complainant that she had poor attendance and that she was not a benefit to them if she was not at work; and 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. 2 2019005874 2. on May 1, 2019, Complainant’s postmaster told Complainant’s supervisor to speak to Complainant about her hair because it was “big and everywhere.” In its final decision, the Agency dismissed the instant complaint in its entirety for failure to state claim in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1). The Agency determined that Complainant failed to demonstrate that she suffered harm to the terms, conditions and privileges of her employment. This appeal followed. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Here, Complainant’s claims failed to demonstrate that the Agency’s alleged conduct affected a term, condition or privilege of Complainant’s employment.2 Complainant has not alleged that she suffered any adverse employment action as a result of the comments. We further find that Complainant has not provided information to assert that the alleged comments were more than isolated incidents, or were sufficiently severe, to allege a viable hostile work environment claim. Moreover, the alleged comments were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). Finally, we note that for the first time on appeal, Complainant also addressed matters (medication which affected her ability to drive and walk, stress that contributed to medical condition) that were not raised in her formal complaint or during EEO counseling. Therefore, we will not consider them here. If Complainant wishes to pursue additional matters of alleged discrimination, she is advised to contact an Agency EEO Counselor. 2 In her formal complaint, Complainant asserted that she wore her hair in a “natural hair style (an afro)”. Title VII does not define the term “race” when prohibiting race discrimination. However, courts have held that an aggrieved individual may, under certain circumstances, assert a claim of race discrimination when an adverse employment action is made on the basis of hair texture. See, for example, Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F. 2d 164, 168 (7th Cir. 1976) (recognizing a claim for racial discrimination based on the plaintiff’s allegation that she was denied a promotion because she wore her hair in a natural Afro). 3 2019005874 Here, the formal complaint fails to state a claim under the EEOC regulations because Complainant failed to allege that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. CONCLUSION The Agency's final decision dismissing the formal complaint for the reason 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. 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). 4 2019005874 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 22, 2020 Date