U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alejandro B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2019003152
Agency No. 1E-801-0023-19
DECISION
Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s decision dated March 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 Tractor Trailer Operator in
Denver, Colorado.
On February 9, 2019, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected him to discrimination based on race, age, and in reprisal for prior protected activity
when:
on November 14, 2018 and on November 15, 2018, a co-worker yelled profane
language at Complainant, but Agency management failed to take action.
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 1, 2019, the Agency issued a final decision wherein it dismissed Complainant’s
complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1).
The instant appeal followed. On appeal, Complainant’s representative contended that
Complainant had established a pattern of harassment. Specifically, Complainant asserted the
facility management was inappropriately permissive of the coworker’s hostile acts and profane
language directed at Complainant. 2
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which fails
to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing initially
under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for
employment of the agency against which the allegations of discrimination are raised. In addition,
the claims must concern an employment policy or practice which affects the individual in his or
her capacity as an employee or applicant for employment. 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; §1614.106(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 properly dismissed the formal complaint for failure to state a claim pursuant to 29
C.F.R. § 1614.107(a)(1). Complainant failed to articulate how he suffered employment harm for
which there is a remedy under EEO statutes. Complainant’s co-worker’s cursing could be
reasonably construed as immature and unprofessional. Even though we assumed the allegations
true and considered them together, we find them insufficient to state a hostile work environment
claim. See Estate of Routson v. Nat'l Aeronautics and Space Admin., EEOC Request No.
05970388 (Feb. 26, 1999). Finally, the alleged Agency actions were not of a type reasonably
likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS,
EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No.
915.003 (May 20, 1998).
CONCLUSION
We AFFIRM the Agency’s final decision dismissing the formal complaint for failure to state a
claim.
2 Witnesses confirmed that the coworker at issue insulted Complainant with obscenities to the
effect of “whiny-ass pussy” or on at least one occasion.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. 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.
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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 11, 2019
Date
