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

Equal Employment Opportunity Commission

Nov 20, 2018

2019000180 (E.E.O.C. Nov. 20, 2018)

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

Toshia F.,1
Complainant,

v.

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

Appeal No. 2019000180

Agency No. 4G-335-0156-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 12, 2018, 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., 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 Letter Carrier for the Agency in Winter
Park, Florida.

On May 19, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
claims were unsuccessful.

On June 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race, sex, color, disability, and age when:

1. on February 24, 2018, Complainant was issued a Letter of Warning for Improper
Conduct;

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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2. on May 15, 2018, management yelled at Complainant and made inappropriate remarks
when she asked to review her attendance record; and,

3. on an unspecified date, Complainant was told by coworkers that her mug shot was passed
around the workroom floor.

On July 12, 2018, the Agency issued its final decision. Regarding claim 1, the Agency
determined that Complainant did not contact an EEO Counselor until May 19, 2018, which was
83 days after the allegedly discriminatory incident identified in this claim. The Agency further
determined that Complainant failed to provide sufficient reason for tolling the limitation period.
Therein, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2).

Regarding claims 2, and 3, the Agency determined that Complainant was not aggrieved because
she did not suffer a personal loss or harm with respect to a term, condition or privilege of
employment, and that even if the incidents were true, they were not sufficiently severe or
pervasive to create a hostile work environment for a reasonable person. The Agency dismissed
claims 2 and 3 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.

The instant appeal followed. Complainant argues that she suffered through a variety of harassing
events stemming back to February 24, 2018, and that these events culminated on May 15, 2018.
Complainant asserts that the May 15, 2018 incident discussed in claim 2, prompted her to contact
an EEO Counselor on May 19, 2018, and that she has been subjected to a continuously hostile
work environment by her manager. Complainant then provides a detailed brief explaining how
the events related, and how it was a demonstration of the ongoing hostile work environment that
she has been subjected to stemming back to January 2018.

ANALYSIS AND FINDINGS

Failure to State a Claim & Untimely EEO Counselor Contact

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).

The Agency fragmented Complainant’s claim of ongoing discriminatory harassment/hostile
work environment by dismissing claim 1 for untimely EEO Counselor contact. A fair reading of
the formal complaint reflects that Complainant is claiming that she was harassed by her manager,
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and other management officials for a period extending to January and February 2018. We
therefore find, that Complainant has stated a valid claim of harassment, as discussed in
Complainant’s pre-complaint, formal complaint and appellate documents. By alleging a pattern
of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See
Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).

Moreover, the Commission has held that “[b]ecause the incidents that make up a hostile work
environment claim collectively constitute one unlawful employment practice, the entire claim is
actionable, as long as at least one incident that is part of the claim occurred within the filing
period. This includes incidents that occurred outside the filing period that the [Complainant]
knew or should have known were actionable at the time of their occurrence.” EEOC Compliance
Manual, Section 2, Threshold Issues at 2- 75 (revised July 21, 2005) (citing National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

At least one of the incidents comprising the instant harassment/hostile work environment claim
occurred with the 45-day period preceding Complainant's initial EEO contact on May 19, 2018
(claim 2). A fair reading of the record reflects that in conjunction with claim 2, the matters
identified in claims 1 and 3 demonstrate Complainant’s overall complaint of on-going
harassment. See Bock v. Department of Homeland Security, EEOC Request No. 0120110975
(Dec. 16, 2011). Therefore, we determine that the Agency improperly dismissed Claim 1 on the
grounds of untimely EEO Counselor contact.

The Agency's final decision dismissing the formal complaint is REVERSED. The formal
complaint as defined herein is REMANDED to the Agency for further processing in accordance
with the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. 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),
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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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. 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 filed your
appeal with the Commission. 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. 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.
Carlton M. Hadden, Director
Office of Federal Operations

November 20, 2018
Date