Salvatore B,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

2019000172 (E.E.O.C. Nov. 21, 2018)

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

Salvatore B,1
Complainant,

v.

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

Appeal No. 2019000172

Agency No. 1K-271-0033-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 17, 2018, dismissing his 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 Mailhandler at the Agency’s facility in
Greensboro, North Carolina.

On June 18, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected him to discrimination based on race (African-American), sex (male), color (dark
brown), age, and in reprisal for prior protected EEO activity.

On July 17, 2018, the Agency issued a final decision. The Agency determined that the formal
complaint was comprised of the following claim:

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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On March 14, 2018, [Complainant] became aware that management allowed an
employee and union steward to read [her] witness statement provided during the
Initial Management Inquiry Process, (IMIP) investigation, regarding an incident
[he] had witnessed, which he believes is not proper protocol when conducting an
IMIP investigation.

The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned
that Complainant did not establish a harm or loss with respect to a term, condition, or privilege
of employment. The Agency further found that the alleged incident was not sufficiently severe
or pervasive to set forth an actionable claim of harassment.

The instant appeal followed.

ANALYSIS AND FINDINGS

Bases of race, color, sex, and age

Regarding the bases of race, color, sex, and age, we find that the Agency properly dismissed
Complainant’s complaint for failure to state a claim. 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 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). We find that Complainant has not alleged a harm
or loss with respect to a term, condition, or privilege of his employment. We further find that the
alleged incident is not sufficiently severe or pervasive to set forth an actionable claim of
harassment. Moreover, to the extent Complainant alleges that the Agency violated the Privacy
Act or the Freedom of Information Act, these claims are outside of the jurisdiction of the
Commission. See Bucci v. Dep’t of Education, EEOC Request Nos. 05890289, 05890290,
05890291 (April 12, 1989).

Basis of reprisal

Regarding the basis of reprisal, we find that the Agency improperly dismissed this matter for
failure to state a claim. Regarding Complainant’s claim of reprisal, the Commission has stated
that adverse actions need not qualify as “ultimate employment actions” or materially affects the
terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa
Fe Railway Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects
individuals from a retaliatory action that a reasonable person would have found materially
adverse, which in the retaliation context means that the action might have deterred a reasonable
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person from opposing discrimination or participating in the EEO charge process); see also
Lindsey v. U.S. Postal Serv, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC
Compliance Manual No. 915.003 (May 20, 1998). Instead, the statutory retaliation clauses
prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to
deter the charging party or others from engaging in protected activity. Id.

In the instant matter, Complainant alleges that he was asked to provide a statement to
management regarding a workplace incident which he witnessed. Complainant asserts that a
named manager ensured him that his statement would be kept confidential. Complainant, in an
attachment to his formal EEO complaint, states that the manager in question purposely disclosed
his statement to several individuals in retaliation for his past protected EEO activity.
Complainant asserts that one of the employees against whom he wrote the statement confronted
Complainant and stated “Mailhandlers don’t or shouldn’t write statements on other
Mailhandlers.” We find that the alleged incident is reasonably likely to deter Complainant or
others from engaging in protected activity.

In sum, regarding the bases of race, sex, color, and age, we AFFIRM the Agency’s final decision
dismissing Complainant’s complaint. However, we REVERSE the Agency’s final decision with
respect to the basis of reprisal and we REMAND this matter to the Agency for further processing
in accordance with the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims (basis of reprisal) in accordance with 29
C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision was issued. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision was issued, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the 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.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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.
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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 21, 2018
Date