Paul D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120182711 (E.E.O.C. Nov. 14, 2018)

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

Paul D.,1
Complainant,

v.

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

Appeal No. 0120182711

Agency No. 4E-840-0025-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final decision dated June 28, 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., 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 Letter Carrier at the Agency’s Mount Ogden
Station in Ogden, Utah.

On June 6, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the based on age and in reprisal for prior protected activity when:

on February 16, 2018, the Agency posted a notice that it had
changed Complainant’s begin tour of duty time from 7:00 A.M. to
7:30 A.M.

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 the instant final decision, the Agency dismissed the formal complaint for failure to state a claim,
pursuant to 29 C.F.R. 1614.107(a)(1).

The instant appeal followed. On appeal, Complaint resubmits a narrative that accompanied his
formal complaint. Complainant states that he had requested that the Agency inspect his mail count
and delivery route as early as February 2017. He states further that the Agency delayed doing so
until November 2017. Complainant contends six other letter carriers at the station had requested
their assignments audited, that the Agency had conducted those audits expediently and then
adjusted those routes in a more desirable manner. Complainant contends that management’s
decision to assign a router to assist with prepping his delivery and to change his start time from
7:00 A.M. to 7:30 A.M. caused other employees to make negative comments toward Complainant.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails
to state a claim within the meaning of 29 C.F.R. §1614.103. To establish standing initially under
29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for employment
of the agency against which the allegations of discrimination are raised. In addition, the claims
must concern an employment policy or practice which affects the individual in his or her capacity
as an employee or applicant for employment. 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; §1614.106(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).

In the instant matter, Complainant requested the Agency audit his workload in order to address his
criticism that his assigned route was overburdened. After the Agency audited Complainant’s route,
it decided to have a router work the first thirty minutes of the route and to have Complainant start
his duties thereafter. we concur with the Agency in that Complainant has failed to show he suffered
an employment loss for which there is a remedy under the EEOC regulations. Moreover, the
alleged Agency action was 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).

CONCLUSION

The Agency’s final decision dismissing the formal complaint for failure to state a claim is
AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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 14, 2018
Date