[Redacted], Evelyn S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022004307 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Evelyn S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004307 Agency No. 1F-841-0103-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 7, 2022, dismissing a formal complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Mail Handler at the Agency’s Auxiliary Service in Salt Lake City, Utah. On June 8, 2022, Complainant filed a formal complaint claiming that the Agency subjected her to discriminatory harassment/hostile work environment based on race, sex, religion, disability, age, and in reprisal for prior protected EEO activity when: 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. 2022004307 2 1. on March 8,2022, management requested medical documentation relative to her Family Medical Leave Act (FMLA) usage; and 2. on March 8, 2022, an employee who had previously harassed Complainant was present in Complainant’s duty station when Complainant returned to work. In its July 7, 2022 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim (Claim 1) The regulation 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, there is no allegation that Complainant was adversely affected by the alleged incident. Complainant claimed, as reported in the EEO Counselor’s report, that she was retaliated against when a management official allegedly inquired about her situation with a co-worker (CW1) Complainant had previously alleged harassment, and the management official subsequently inquired what Complainant would do when she ran out of FMLA leave. However, Complainant fails to assert that the management official’s inquiry altered the terms of her employment or otherwise caused her harm. Thus, there is no indication that Complainant suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Moreover, even taking the facts as alleged as true, we do not find that this incident was sufficiently severe or pervasive to set forth an actionable claim of harassment. The alleged incident was of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc,. 523 U.S. 75, 81 (1998). Moreover, with regard to her retaliation claim, we conclude that the alleged incident, even if proven true, was not of a type that was reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15. 2022004307 3 Previously Raised Claim (Claim 2) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. Complainant filed a prior EEO complaint, identified as Agency No. 1F-841-0078-21, alleging claims of discriminatory and retaliatory harassment when Complainant was purportedly harassed from July 15, 2021, through October 14, 2021, by CW1, the same person identified in the instant complaint. The Commission’s records reflect that this prior complaint is currently pending adjudication by the assigned EEOC Administrative Judge (AJ) under EEOC Hearing No. 540- 2022-00142X. In the instant formal complaint, Complainant has alleged the same ongoing harassment by CW1.2 We conclude claim 2 is sufficiently identical to the claims raised in Agency No. 1F-841-0078-21 and, as such, should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION The Agency’s final decision dismissing the formal complaint for reasons stated above is AFFIRMED. 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). 2 In the instant formal complaint, Complainant does not provide or reference any dates for the alleged “ongoing” harassment by CW1. 2022004307 4 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. 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. 2022004307 5 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 31, 2022 Date