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

Equal Employment Opportunity Commission

Nov 29, 2018

2019000056 (E.E.O.C. Nov. 29, 2018)

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

Odell H.,1
Complainant,

v.

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

Appeal No. 2019000056

Hearing No.: 550-2017-00452X

Agency No. 4F940000917

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated July 19, 2018, dismissing his EEO complaint of
unlawful employment discrimination pursuant to 29 C.F.R. § 1614.107(a)(1). For the following
reasons, the Commission AFFIRMS the Agency’s decision dismissing the complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician,
CC-06, at the Agency’s post office in Petaluma, California. On February 3, 2017, Complainant
filed a complaint alleging that the Agency subjected him to discrimination on the basis of
reprisal (grievance activity) for prior protected EEO activity under an EEO statute that was
unspecified in the record when on October 26, 2016, he was placed on Emergency Placement in

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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an Off-Duty Status and subsequently, on November 12, 2016, he was issued a Notice of
Removal.2

On September 20, 2017, the Agency filed a Motion to Dismiss for Failure to State a Claim and
Complainant filed his response on October 4, 2017. On July 11, 2018, the AJ issued a decision
without holding a hearing. The AJ incorporated the Agency’s Motion to Dismiss for Failure to
State a Claim and found that Complainant failed to establish facts to indicate he engaged in prior
EEO activity as alleged. The Agency’s final order implemented the AJ’s decision. Complainant
appealed.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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). If Complainant cannot establish that he is aggrieved, the Agency shall dismiss a
complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).

The record establishes that Complainant’s grievance from January 2016 and grievance
counseling thereafter concerns safety violations and management versus union relations. The
grievance does not allege discrimination on any protected basis. In order to state a claim of
retaliation, Complainant has to show that he opposed a practice made unlawful by laws enforced
by the EEOC or that he participated in any stage of administrative or judicial proceedings under
those laws. See 29 C.F.R. § 1614.101(b). Complainant failed to make that showing.

CONCLUSION

The Agency’s decision dismissing the complaint is AFFIRMED.

2 The complaint also addressed allegations of retaliation for events occurring in March 2016. The
Agency issued a partial dismissal of the March allegations for untimely contact with an EEO
counselor. Complainant did not challenge the partial dismissal in his response to the Agency’s
motion to dismiss or in his appellate brief. Accordingly, the alleged events in March 2016, will
not be addressed in this decision.
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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. 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.
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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

November 29, 2018
Date