[Redacted], Doris F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2021004494 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doris F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021004494 Agency No. 4G-330-0170-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 6, 2021, dismissing her 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. For reasons outlined in detail below, the Commission AFFIRMS the Agency’s dismissal of the Complainant’s complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency’s Miramar facility in Miramar, Florida. On June 25, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African- American) and color (Black). Complainant stated that she was in the manager’s (Manager’s) office discussing a leave input that was incorrect. During the conversation, as the Manager was explaining the matter, Complainant asserts that the Manager stated, “You people had it good last year.” A few days later, the Manager stated that she was not a racist, while specifying names and race of colleagues. In its final decision, the Agency noted that Complainant was “offended and dismayed” by the Manager’s comment. The Agency, however, found that Complainant did not relay any other such incidents, nor did Complainant relate a loss of a term, condition, or privilege employment. 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. 2021004494 2 As such, the Agency concluded that Complainant also did not allege adverse employment action. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant filed the instant appeal but did not provide a statement in support of her appeal. The Agency responded to the appeal stating that the Agency’s decision was consistent with applicable case law and should be sustained. 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 prior participation in the EEO process. 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). The Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997); Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); see also Henry v. U.S. Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). Complainant alleged in her complaint that the Manager stated, during a conversation regarding a leave input mistake, “You people had it good last year.” Complainant believed this remark to be racist. The Manager, per Complainant, continued to state, three additional times, that she was not a racist. The Commission has held that a supervisor’s use of the words “you people” does not constitute direct evidence of discriminatory animus absent some indication that it was in reference to complainant’s race; the words “you people,” alone, while possibly inferred as discriminatory, are ambiguous in regard to national origin, race, or color. See Cruz v. U.S. Postal Serv., EEOC Request No. 0120072249 (August 2, 2007). Moreover, a remark or comment unaccompanied by any concrete effect does not constitute a harm or loss for which there is a remedy. Thomas V. Miller v. Dep’t of Veterans Affairs, EEOC Request No. 05901159 (Jan. 11, 1991). 2021004494 3 Although Complainant stated that she was offended by the Manager’s statement, in light of the above, we find that the Manager’s statement, as viewed in context of Complainant’s complete recount of events, is insufficient to render her aggrieved for the purposes of Title VII. See Formal Complaint, Complaint File, at 10. Moreover, Complainant does not allege a direct or personal deprivation to accompany this singular statement. Id. As such, based on the circumstances of this case, Complainant’s claim is insufficient state a claim of harassment and the Agency’s dismissal of the claim was proper. CONCLUSION Therefore, the Commission AFFIRMS the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021004494 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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 8, 2021 Date