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

Equal Employment Opportunity Commission

Apr 26, 2019

2019000974 (E.E.O.C. Apr. 26, 2019)

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

Susie K.,1
Complainant,

v.

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

Appeal No. 2019000974

Agency No. 1C451007118

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 31, 2018, dismissing her 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 Supervisor,
Distribution Operations (SDO), at the Agency’s Main Post Office facility in Cincinnati, Ohio.

On October 5, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (African-American), sex (female), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 17, 2016,
her supervisor placed her on the “Deems Desired” list. She further alleged that she had FMLA
coverage, following a car accident on April 9, 2018. She had a hard time recovering and was
required to go to the doctor 3 times per week. She informed her supervisor of this and he refused
to work with her schedule.

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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In support of her claim, Complainant submitted a table of comparators showing a list of
employees with attendance issues. It describes the employees by race and gender and indicates
that while the black females were placed on the “Deems Desired” list, none of the white males or
females, or black males were placed on the list.

Complainant also alleged that, since her prior complaint, the Agency has subjected her to
retaliation, noting multiple instances. On September 6, 2017, she received a notice of “conduct
unbecoming” she raised her voice during a discussion with another supervisor and was accused
of fighting. On September 13, 2017, she told her supervisor that he had marker or something on
the back of his pants and he pulled down his pants to check them and, as she was running out of
the room, he told her to calm down because he had boxers on. On November 26, 2017, her
supervisor removed the chairs from the supervisor room so that she could not sit and told her that
he wanted her on the floor all day. In March 20118, her supervisor berated her and cussed at her
in front of co-workers about an issue with the mail that was not her fault. On undisclosed dates,
her supervisor told her to make sure she clocks out for lunch, even though he doesn’t always do
so; and made her call him on the radio to him let her know when she needed to go to the
restroom, when other co-workers do not have to do this. On September 11, 2018, when
paramedics were called to address Complainant’s blood pressure, he gave them a non-working
phone number, which delayed her medical treatment and, when she left for the hospital, he
clocked her out, even though other employees have not been taken off the clock when they have
gone to the hospital; when she returned, he did not want to give her the paperwork to report the
incident, although he eventually gave it to her several days later.

The Agency dismissed Complainant’s claim relating to being placed on the “Deems Desirable”
list, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency reasoned
that Complainant was not an “aggrieved employee,” as her being placed on the “Deems
Desirable” list does not involve a loss of a term, condition, or privilege of employment and
Complainant did not allege receiving any adverse action. The Agency also acknowledged that
the circumstances and actions of which she complained, even if true, were neither sufficiently
severe nor persuasive enough to create a discriminatory hostile or abusive working environment.
The alleged action, placing Complainant on the “Deems Desirable” list, was within the realm of
managerial prerogative and authority.

The Agency dismissed Complainant’s other allegations pursuant to 29 C.F.R. § 1614.107(a)(2),
for untimely EEO Counselor contact. In so doing, the Agency noted that Complainant alleged
discreet actions occurring between September 2017 and September 2018 and requested pre-
complaint processing until June 27, 2018. The Agency found Complainant’s request for pre-
complaint counseling was made more than 45 days after these alleged actions and, therefore, the
EEO Counselor contact was untimely. The Agency also found that these allegations were never
brought to the attention of the EEO Counselor.

The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant alleges that the EEO Officer refused to consider Complainant’s
evidence of discrimination and/or retaliation. Complainant provided information relating to other
incidents that were relevant to the issue of her being placed on the “Deems Desirable” list.

Complainant also alleges the EEO Officer also conducted the wrong legal analysis. The EEO
Officer claims that Complainant alleged harassment and completely ignored Complainant’s
retaliation claim, which is analyzed under a different legal standard. The EEO Officer applied a
hostile work environment analysis, when the complaint did not refer to harassment or a hostile
work environment. Rather than proving an adverse employment action, Complainant needed to
show that the challenged action might have dissuaded a reasonable worker from making or
supporting a charge of discrimination. The series of alleged actions included actions that
occurred a few months following Complainant’s sexual harassment EEO complaint. The
supervisor berated Complainant and generally held her to a different standard from other
employees. The EEO officer should have considered all of these facts as evidence to support
Complainant’s allegation that her placement on the “Deems Desirable” list was retaliatory.

The Agency has not submitted a brief or statement in response.

ANALYSIS AND FINDINGS

Dismissal for Failure to State a Claim

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, .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). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

As an initial matter we find that allegations of being placed on the “Deems Desirable” states a
claim. Her allegation that the Agency acted discriminately in placing her on the “Deems
Desirable” list is an allegation of an injury or harm to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Therefore, we find that the Agency's dismissal of the complaint
pursuant to 29 C.F.R. §1614.107(a)(1), for failure to state a claim, was not appropriate.

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We also note that the complaint, as discussed above, also raises the issue of whether the Agency
denied Complainant a reasonable accommodation for her disability. Her allegations relating to
this also state a claim. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April
21, 1994).

Dismissal for Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that an agency shall
dismiss a complaint that fails to comply with the applicable time limits contained in § 1614.105
unless the agency extends the time limits in accordance with § 1614.604(c), or that raises a mater
that has not been brought to the attention of a Counselor.

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

The Agency dismissed Complainant’s remaining claims for untimely EEO Counselor contact,
pursuant to 29 C.F.R. § 1614.107(a)(2), because they were brought to the EEO Counselor after
the expiration of the 45-day period and also because they had not been brought to the attention of
an EEO Counselor. The record shows that Complainant did not bring include any of these
alleged acts in her initial EEO counseling. The EEO Counselor’s notes accurately indicate that
Complainant added these other allegations in her formal complaint.2 However, as discussed
above, Complainant asserts that these allegations were presented as a matter of background to
support her claim regarding the “Deems Desirable” list. Her complaint also did not include an
allegation of harassment or a hostile work environment. Thus, we find that Complainant does not
allege she is aggrieved with respect to these allegations, either as discreet discriminatory acts or
as part of a pattern of harassment; and she, therefore, has not raised them as claims, either
individually or collectively. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049
(April 21, 1994).

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108
et seq. 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

2 The EEO Counselor’s notes also indicate that Complainant alleged age as an additional basis of
discrimination. However, her formal complaint does not mention age.
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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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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). 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:
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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 (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.

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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

April 26, 2019
Date