[Redacted], Marguerita D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 5, 2023

Appeal No. 2022005062 (E.E.O.C. Jan. 5, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerita D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022005062 Agency No. 4G-300-0444-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 31, 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., 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 City Carrier, Grade Level O1/C, at the Agency’s Post Office in Norcross, Georgia. On August 8, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, age, and in reprisal for prior protected EEO activity when: On June 14, 2022, management posted Complainant’s leave status as Leave-Without-Pay (LWOP) on the employee schedule. 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 2022005062 The Agency dismissed the formal complaint for failing to state a claim pursuant to 29 C.F.R. 1614.107(a)(1). Specifically, the Agency determined that Complainant had not sustained an employment harm and had not been subjected to a hostile work environment. The instant appeal followed. On appeal, Complainant argues that the Agency has been biased in favor of management and against her. Complainant stated that the Agency had retaliated against her prior EEO complaints involving her use of FMLA leave and improper withholding of extra pay for Complainant’s working over the Juneteenth holiday. Complainant argues further that the Agency breached a settlement agreement in a prior EEO case. Complainant argued that her chain of command had recently conspired to cover-up on behalf of the co-workers that she had reported for assaulting her. ANALYSIS AND FINDINGS Under the Commission’s regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that fails to state a claim. Here, the Agency properly dismissed Complainant’s formal EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Commission makes this finding because Complainant did not show that she had suffered present harm or loss with respect to a term, condition, or privilege of her employment for which there is a remedy under EEOC Regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We considered the record before us in the light most favorable to Complainant and presumed the events she described were true. Complainant may have preferred that her manager not report that her status was “LWOP” in the June 2022 schedule that was observable to co-workers. Even so, we concur with the Agency’s dismissal for failure to state a claim because here, Complainant was not subjected to what would be considered a hostile environment and nor was she subjected to a personnel action which adversely altered her employment conditions. Regarding Complainant’s argument regarding breach of a settlement agreement in resolution of a prior complaint, Complainant is advised to contact the Agency regarding any such brief claims. CONCLUSION The formal complaint was properly dismissed for failure to state a claim under 29 C.F.R. § 1614.107(a)(1). The Agency's final decision is AFFIRMED. 3 2022005062 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. 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). 4 2022005062 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 5, 2023 Date