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

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022003162 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicolasa M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003162 Agency No. 4G-320-0067-22 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 18, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian, P-04, at the Agency’s Homosassa Springs Post Office facility in Summerfield, Florida. On March 23, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal (Not Specified) under Title VII of the Civil Rights Act of 1964 when: 1. on January 31, 2022, management instructed her to move the postal vehicle to another location that created a safety hazard; 2. on February 1, 2022, and February 4, 2022, management yelled at her; and 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. 2022003162 2 3. on February 9, 2022, management instructed her not to empty trash cans while carriers are in the building. The Agency dismissed the complaint in its entirety for failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1). It reasoned that Complainant’s claims did not constitute a present harm or loss to a term, condition, or privilege of her employment. In addition, it determined that the incidents complained of, if true, were neither sufficiently severe nor pervasive to create a discriminatorily hostile or abusive working environment. CONTENTIONS ON APPEAL On appeal, Complainant argues that her work conditions were adversely altered. She also contends that when she complained about a safety issue, Acting Supervisor retaliated against her. Complainant maintains she was harmed when Acting Supervisor spread a rumor about Complainant’s alleged behavior and when Acting Supervisor threatened to go outside the chain of command to hurt Complainant. Moreover, according to Complainant, the EEO Dispute Resolution Specialist (“DRS”) advised Complainant to leave out from the formal complaint a matter involving Acting Manager of Post Office Operations (“Acting Manager”) allegedly telling Complainant to wear a mask but not telling others to do so. Complainant concludes by asking for an appeal, as the Agency did not investigate her claims, including the mask incident. The Agency submits no arguments or contentions on appeal. 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 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). In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “‘simple teasing,’ . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment[]’” (internal citations omitted). 2022003162 3 In the instant case, even considering all the incidents alleged by Complainant in the formal complaint and during EEO counseling, and assuming they occurred as alleged, we do not find they are sufficiently severe or pervasive to set forth an actionable claim of harassment. Complainant’s allegations suggest a personality conflict or communication problems between Complainant and the Postmaster. 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 Servs., Inc., 523 U.S. 75, 81 (1998). Furthermore, Complainant alleged that she was subjected to retaliation after reporting a workplace safety issue. When a complaint of reprisal fails to identify EEO or other protected activity under the anti-discrimination statutes, the complaint is not within the purview of the administrative EEO complaint process and must be dismissed for failure to state a claim. See Christena v. Dep’t of Veterans Affs., EEOC Appeal No. 2022002839 (July 21, 2022) (citing Bryant v. Dep’t of Just., EEOC Request No. 05980273 (June 4, 1999)). Here, according to the DRS Inquiry Report, Complainant claims she was retaliated against after Complainant completed an internal “Report of Hazard” form. Filing an internal form regarding workplace safety is not protected activity within the purview of the EEO complaint process. See Christena, supra. Insofar as Complainant argues on appeal that the EEO Dispute Resolution Specialist misled or misadvised Complainant regarding leaving out a mask-wearing claim from the formal complaint, the DRS Inquiry Report noted that Complainant was counseled on a claim that Acting Manager told Complainant to wear her mask but did not instruct anyone else to wear a mask. “A complainant who receives counseling on a claim, but does not go forward with a formal complaint on that claim[,] is deemed to have abandoned it, and consequently, cannot raise it in another complaint.” Lynch v. U.S. Postal Serv., EEOC Appeal No. 01A52319 (May 5, 2005) (citing Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999) (citing Robinson v. Peace Corps, EEOC Request No. 05940170 (May 2, 1995)). Here, Complainant submitted a formal complaint that does not include a claim regarding being told to wear a mask. Therefore, the Commission finds that Complainant abandoned the claim about the mask issue when she did not include it in her formal complaint. We thus find that the complaint was properly dismissed for failure to state a claim. CONCLUSION Accordingly, for the reasons described herein, we AFFIRM the Agency’s decision to dismiss the complaint. 2022003162 4 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). 2022003162 5 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 October 11, 2022 Date