Renato K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Mar 15, 2019

2019001072 (E.E.O.C. Mar. 15, 2019)

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

Renato K.,1
Complainant,

v.

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

Appeal No. 2019001072

Agency No. 1C-451-0067-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated September 20, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Mail Handler, PS-04, at the Agency’s
Columbus Post Office in Columbus, Ohio.

On August 21, 2018, Complainant filed a formal complaint. Complainant claimed that the
Agency subjected him to discrimination based on disability (stress) when:

on April 4, 2018, his supervisor (S1) directed a violent outburst at Complainant.

Complainant’s formal complaint did not describe S1’s alleged violent outburst. According to the

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.
2019001072

2
EEO Counselor’s Report, however, on April 4, 2018, S1 was engaged in training on the
computer in his office when Complainant knocked on S1’s door. The EEO Counselor’s Report
further indicated that S1 stated that a note on his office door informed employees that he was in
training. The note also contained the name of an individual whom employees should contact for
assistance. However, when Complainant continued to knock on the door, S1 loudly told
Complainant to read the sign.

In its final decision dated September 20, 2018, the Agency dismissed the complaint for failure to
state a claim in accordance with EEOC Regulation 29 C.F.R. §1614.107(a)(1). The Agency
determined that Complainant failed to demonstrate that he was suffered a harm or loss
concerning the terms, conditions or privileges of his employment.

This appeal followed.

On appeal, Complainant argues that the Agency’s EEO Counselor focused only on the incident
of April 4, 2018 as described above, but failed to consider other instances of alleged
discrimination by Complainant’s supervisor. Complainant argues that the Agency’s dismissal of
the instant complaint failed to address his overall claim that he has “suffered direct and personal
deprivation….with regard to [the Agency’s] discriminatory practices against him.”

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 C.F.R. § 1614.103. 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).

Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of
his employment. The record does not contain a claim that Complainant was disciplined or
subjected to any adverse personnel action as a result of the alleged event described in the instant
formal complaint. Further, the complaint as written, without more, does not allege facts which,
if proven true, would establish Complainant was subjected to a discriminatory hostile work
environment.

We note Complainant’s assertion on appeal that the Agency’s EEO counselor failed to address
additional claims of discrimination. However, in both his informal complaint presented to the
EEO counselor and the formal EEO complaint, Complainant himself refers only to the incident
of April 4, 2018. While in Complainant’s formal complaint he states that he has “supporting
documentation that establishes a history of [S1’s] behavior…” and while he further indicates that
“[named individual’s] behavior is in complete disregard to [Complainant’s] mental and physical
limitations…”, Complainant fails to provide specific dates or other information regarding
additional incidents of alleged discrimination.

2019001072

3
On appeal, Complainant points to four separate incidents of alleged discrimination occurring
August 24, 2016, July 13, 2016, April 13, 2016 and March 25, 2016, involving S1 and another
named Agency official that he contends should have been addressed in the instant EEO
complaint. To the extent that Complainant wishes to raise these additional matters, detailed for
the first time on appeal, he is advised to initiate EEO counselor contact thereon.

Finally, if we were to presently address these newly raised matters, we note that Complainant
filed grievances on the additional incidents of alleged discrimination occurring on August 24,
2016, July 13, 2016, April 13, 2016 and March 25, 2016, involving S1 and another named
Agency official. A review of the record discloses that the grievances were resolved with
agreements between Complainant and the Agency. These new matters could arguably, therefore,
constitute a collateral attack on the negotiated grievance process. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No.
05940585 (September 22, 1994); Linead v. USPS, EEOC Request No. 05930106 (June 24,
1993). .

In sum, we determine that the singular issue identified in the formal complaint and during pre-
complaint processing fails to state a claim under the EEOC regulations because Complainant
failed to show that he suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy.

CONCLUSION

The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons
discussed above.

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.

2019001072

4
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.
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.

2019001072

5
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

March 15, 2019
Date