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

Equal Employment Opportunity Commission

Dec 26, 2019

2020000570 (E.E.O.C. Dec. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000570 Agency No. 1G-331-0036-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated August 2, 2019, pertaining to 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mail Handler at the Agency’s Royal Palm Processing & Distribution Center facility in Miami, Florida. Believing that he was subjected to discriminatory harassment by Supervisor, Distribution Operations (hereinafter “Supervisor”), Complainant contacted an EEO Counselor. Specifically, Complainant alleged that, on January 30, 2019, he was “singled out and harassed” when Supervisor stood at his work location, watching him, and giving him instructions. When he wanted to leave on a break, she threatened that he could not leave until the setup was finished. Informal efforts to resolve Complainant’s concerns were unsuccessful. 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. 2020000570 2 Subsequently, on July 18, 2019 Complainant filed a formal complaint based on race (unspecified), color (unspecified), and age. On August 2, 2019, the Agency issued a decision dismissing the complaint. The Agency reasoned that the sole incident was insufficient to qualify as harassment. Additionally, it noted that the matter was resolved by a Step 2 grievance settlement, executed on March 27, 2019, prior to the filing of the formal EEO complaint and thereby rendering the matter moot. Lastly, the Agency found that the complaint was untimely filed. According to the Agency, Complainant received the Notice of Right to File Individual Complaint (hereinafter “Notice”) on June 12, 2019. Since the complaint did not have a postmark, the Agency applied the five-day presumption rule, and calculated the last date of timely filing to be June 27, 2019. The formal complaint, however, was not received until July 18, 2019. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant’s complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep’t of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Here, Complainant acknowledges on appeal that a grievance settlement was executed but argues that it did not completely resolve the matter because Supervisor has not “faced consequences”. Complainant proceeds to question how Supervisor was ever hired by the Agency and argues that Supervisor should be disciplined and required to take training. Based on a review of the instant record, we find that alleged event on January 30, 2019 was rendered moot by the March 27, 2019 grievance settlement. The settlement awarded Complainant monies for the “one hour worked and not paid.” To the extent that Complainant believes the sole incident constituted unlawful harassment, we do not find it was sufficiently severe or pervasive to create a hostile or abusive work environment. See Cobb v. Dep’t of Treasury, EEOC Request No. 05970077 (March 13, 1997). Although Complainant felt he was being singled out, Supervisor’s actions (i.e. to oversee Complainant’s work and provide instruction) is, as alleged by Complainant, a single isolated incident that appears within the realm of ordinary managerial authority. The Agency’s decision to dismiss the complaint was proper. In light of our disposition, we shall not consider whether dismissal on alternative grounds was appropriate. 2020000570 3 CONCLUSION Accordingly, the Agency’s decision is hereby AFFIRMED. 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. 2020000570 4 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 December 26, 2019 Date