Susan P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jul 23, 2019

2019003451 (E.E.O.C. Jul. 23, 2019)

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

Susan P.,1
Complainant,

v.

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

Appeal No. 2019003451

Agency No. 1G-351-0017-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated April 1, 2019, dismissing a formal
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 for the Agency as a Postal Support Employee,
P-06 in Mobile, Alabama.

On March 18, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected her to discrimination based on sex and age when:

1. On or about December 29, 2018, a co-worker stated that management was trying to fire
her;

2. On January 2, 2019, she was questioned about a previous incident; 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.
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3. On an unspecified date, management made a remark about her hair.

The Agency dismissed the instant matter for failure to state a claim in accordance with EEOC
Regulation 29 C.F.R. §1614.107(a)(1).

ANALYSIS AND FINDINGS

An agency shall dismiss a complaint that fails to state a claim under 29 C.F.R § 1614.103 or §
1614.106(a). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court
reaffirmed the holding of Meritor Savings 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.

Complainant has failed to show that she was subjected to discriminatory changes in the terms or
conditions of employment. As noted by the Supreme Court, “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms or conditions of employment”. Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998). An allegation of a single incident of a harasser coming uncomfortably close to a
complainant, even combined with other types of harassing behavior, is insufficient to state a
claim of harassment. See e.g. Bejar v. Department of Health and Human Services, EEOC Appeal
No. 01A20721 (May 10, 2002) (allegation of single incident of “[invasion of] personal space”
together with allegations of repeated hostile staring and gesturing insufficient to state a claim of
harassment).

In this case, the only specific allegations of harassment involve three isolated incidents involving
an unsubstantiated statement from a co-worker about the alleged intentions of management,
being questioned about an incident and an alleged remark made about Complainant’s hair.
Where a complaint does not challenge an agency action or inaction regarding a specific term,
condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the
harassment to which the complainant has been subjected was sufficiently severe or pervasive to
alter the conditions of employment. The subject claim is not sufficiently severe or pervasive to
set forth an actionable claim of harassment. We note, moreover, that Complainant merely
reiterates her arguments on appeal and presents no persuasive arguments or other evidence in
support of her claims.

In sum, the Agency properly dismissed the formal complaint for failure to state a claim under 29
C.F.R. § 1614.107(a)(1). See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049
(April 21, 1994).

CONCLUSION

The Agency's final decision dismissing the formal complaint for the reasons discussed above is
AFFIRMED
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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.
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 (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.

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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

July 23, 2019
Date