U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leon B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2019002923
Agency No. 4F-926-0047-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 21, 2019, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier, Q-01,
at the Agency’s Glendora Post Office in Glendora, California. On March 4, 2019, Complainant
filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of
disability and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act
when:
1. On January 28, 2019, the Postmaster made threats to Complainant when she stated
that Complainant would be evaluated and counted and if he did not do well,
Complainant would be forced to work longer on the street than in the office, despite
Complainant having a physical injury known to the Postmaster. The Postmaster
also stated that Complainant would be terminated if, after continual evaluation, he
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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did not drastically improve. Finally, the Postmaster stated that Complainant was
hurting the office and an embarrassment to the Postal Service.
The Agency dismissed Complainant’s claim pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim. The Agency states there was no persuasive evidence in the record that Complainant
was subjected to any adverse employment action or denied any entitlement in relation to a term,
condition or privilege of employment as a result of the incident he raised in his complaint. Also,
the Agency stated that the totality of the circumstances and the actions complained of, even if true,
are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive
working environment.
In the instant appeal, Complainant argued that the Postmaster made the threats to intimidate
Complainant and deter him from pursuing or filing any further EEO complaints. He argues that
the Postmaster’s actions were reasonably likely to deter him or others from engaging in protected
activity. The Agency did not submit a statement in opposition to Complainant’s appeal.
ANALYSIS AND FINDINGS
The regulations 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 application for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sec, 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 privileges of employment for which there is a remedy. Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete agency action are not a
direct and personal deprivation sufficient to render and individual aggrieved for the purposes of
Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry
v. U.S. Postal Serv., EEOC Request No. 05940695 (February 9, 1995).
In the present case, we find the Agency improperly dismissed Complainant’s complaint.
Complainant argues that the Postmaster’s statements to him are meant to intimidate him and would
deter any reasonable person from opposing discrimination or participating in the EEO complaint
process. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S. Ct. 2405
(2006). We note that Complainant was not issued discipline, he was not put off the clock, and his
pay was not compromised in any fashion. However, Complainant alleged that the Postmaster stated
that if Complainant did not do well in his evaluation, Complainant would be forced to work longer
on the street, when Complaint has physical limitations due to his disability. The Postmaster’s
threats of increased scrutiny upon Complainant, as well as the threat to make Complainant work
beyond his restrictions may be considered evidence to support a hostile environment claim. See
Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, 2265 (1998). We note that the Postmaster’s
comments, regarding Complainant hurting and being an embarrassment to the Postal Service, must
be evaluated from the perspective of EEOC regulations for a claim of discrimination and reprisal.
20190029233
Therefore, if proven to be true and viewed in a light most favorable to Complainant, the record
may indicate that the alleged incidents were sufficiently severe or pervasive to alter the conditions
of employment and constitute a hostile work environment. As such, this case must be remanded
for further investigation into Complainant’s allegations.
CONCLUSION
Accordingly, the Agency’s final decision dismissing the Complainant’s complaint is
REVERSED, and it is ORDERED that this matter be REMANDED back to the Agency for
processing.
ORDER (E0618)
The Agency is ordered to process the remanded claims 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.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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).
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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. 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).
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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. 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 16, 2019
Date
