U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Pedro C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 2019002860
Agency No. 4C-150-0099-18
DECISION
On January 7, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 4,
2018, 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier (City), PS-
2310-2009-Q-01 at the Agency’s South Hills Branch in Pittsburgh, Pennsylvania.
On November 19, 2018, Complainant filed an equal employment opportunity complaint alleging
that the Agency subjected him to harassment and discrimination based on his race (Spanish) and
age (58) when:
1. Starting in June 2018, his supervisor (S1) harassed him by being confrontational by on
June 27, 2018, telling him he did not timely deliver his route, on June 28, 2018, in an
intimidating tone of voice after Complainant just arrived telling him to get to a certain task
even though he always does this, on June 29, 2018, coming to him and saying “I welcome
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.
20190028602
the challenge” and “You’re are going to lose,”2 later that day telling him he double handled
the mail and in response to Complainant’s excuse said “You want to play games,” and then
when he was delivering his route S1 sent an acting supervisor to monitor him, and July 6,
2018, he received a pre-disciplinary interview by S1; and
2. He was issued a letter of warning (LOW) dated July 18, 2018, which he received on July
20, 2018, for engaging in a variety of time wasting practices causing him not to timely
deliver his route, using a Blue Tooth device and not wearing his uniform on his route, and
using unauthorized overtime due to an unsatisfactory effort.
Complainant grieved the letter of warning, and on October 23, 2018, it was reduced to an official
discussion.
The Agency found that issue 2 was moot because the letter of warning was resolved in a grievance
prior to the EEO complaint being filed. It both found that issue 1 was background to issue 2 and
failed to state a claim because it did not rise to the level of actionable harassment. The instant
appeal followed.
On appeal, Complainant argues that the FAD should be reversed, and contends for the first time
that the events in issue 1 and 2 were reprisal for prior EEO activity.
ANALYSIS AND FINDINGS
As an initial matter, we agree with the Agency’s initial inclination that issue 1 is background for
issue 2, except for S1’s alleged remarks to Complainant that he would welcome the challenge and
he is going to lose.
In certain situations, a LOW reduced to a discussion no longer constitutes a disciplinary action,
and hence is rendered moot and fails to state a claim. Griffin v. United States Postal Service, EEOC
Appeal No. 0120121890 (Oct. 23, 2012) (the complainant alleged discrimination based on race,
religion, color and reprisal for prior protected EEO activity where the agency gave the complainant
an opportunity to demonstrate an entitlement to compensatory damages and he did not demonstrate
an entitlement when he requested them); Andres M. v. United States Postal Service, EEOC
Request No. 0520180240 (Oct. 25, 2018) (failure to state a claim because the complainant was not
aggrieved).
Complainant has not requested compensatory damages.
Regarding S1’s alleged remarks to Complainant that he would welcome the challenge and is going
to lose, prior to the appeal Complainant did not state what the remarks referred to nor allege reprisal
2 On appeal, Complainant writes this refers to an EEO case against the Agency which his lawyer
was working on settling.
20190028603
discrimination. Based on what was before the Agency, these alleged remarks were not sufficiently
sever or pervasive, even in combination with the LOW, to state a claim of actionable harassment.
For the first time on appeal, Complainant raises reprisal discrimination, and alleges that S1’s
remarks referenced an EEO case his lawyer was working on settling. Assuming without deciding
that Complainant can add the basis of reprisal on appeal here, we find that S1’s alleged remarks to
Complainant that he would welcome the challenge and he is going to lose were not a threat that
management might or was going to do something bad to Complainant, but were snide comments
that would not reasonably likely deter EEO activity.
Accordingly, the FAD is 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).
20190028604
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.
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 2, 2019
Date
