Cleo Q,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

2019005011 (E.E.O.C. Sep. 25, 2019)

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

Cleo Q,1
Complainant,

v.

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

Appeal No. 2019005011

Agency No. lF901010719

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's June 3, 2019, dismissal of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mail Processing
Clerk, PS-06, at the Los Angeles Processing and Distribution Center (“P&DC”) located in Los
Angeles, California.

On May 4, 2019, Complainant filed a Formal EEO Complaint alleging that the Agency subjected
him to harassment based on sex (male) and reprisal (engaging in prior protected EEO activity)2
when:

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.

2 Agency Case Nos. 1F901000218 (pending a hearing before an EEOC Administrative Judge,
EEOC Hearing No. 480201800590X) and 1F901020918 (resolved through a December 20, 2018
Settlement Agreement).
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On February 23, 2019, his supervisor stood in front of him, stared at him, and
took pictures of him while he worked on his assignment.3

On February 23, 2019, Complainant was working in the high value cage, within the registry
alone when his supervisor (“S1”) entered. By Complainant’s account, when S1 saw him, she
“walked over stood in front of me and started staring at me….approximately three and a half feet
away.” Complainant continued to work, and ignored her until other employees came in.
However, before anyone else came in, S1 “took out her camera phone, aimed right at me and
started taking pictures of me.” Complainant later learned from an investigation that S1 had told
other employees not to enter the registry during that time. Later that morning, several
management officials asked to meet with Complainant and asked him if anything happened with
S1, indicating they intended to conduct an investigation into the “issues” between Complainant
and S1. When Complainant revealed what occurred, the Lead Manager Distribution Operations
(“S2”), instructed a subordinate supervisor to accompany Complainant in the registry to “be an
observer.” S2 informed the EEO Counselor that he did not receive any further reports of
harassment.

The Agency dismissed the matter in accordance with 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim. The instant appeal followed.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

The Commission has held that a claim of harassment may survive a dismissal if it alleges
conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

S1’s alleged action on February 23, 2019 of standing physically close and taking photos without
explanation, all the while staring him down, is understandably intimidating and harassing.
However, we have repeatedly found that allegations of isolated incidents of alleged harassment
usually are not sufficient to state a viable harassment claim.

3 Complainant’s Formal Complaint alleges “continuous sexual harassment, stalking, [and] being
humiliated by [his supervisor]” but only provides the events on February 23, 2019.
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See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996) (finding
allegations that a supervisor "verbally attacked" complainant on one occasion, attempted to
charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log,
were insufficient to state a harassment claim); see also Banks v. Dep’t of Health and Human
Services, EEOC Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion
a supervisor threw a file on the complainant's desk and berated her in a loud voice in the
presence of other employees insufficient to state a harassment claim).

On appeal, Complainant alleges that S1 has subjected him to “continuous” harassment, yet he
only offers the February 23, 2019 example.4 Complainant does not dispute that S2 took
immediate and effective action once he reported S1’s harassment. We also note that S1 stated in
the EEO Counselor’s report that she and Complainant work on different tours. Therefore, we
find that Complainant’s allegation of a single incident of harassment insufficient to state a claim
of a hostile work environment.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint 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.

4 On appeal, Complainant directs the Commission to Agency Case No. 1F901020918 as
evidence that the alleged harassment by S1 is “continuous.” However, the Agency provided a
copy of a binding settlement agreement Complainant entered into with the Agency on December
20, 2018, where, in exchange for a lump sum payment of $1500, he voluntarily withdrew
Agency Case No. 1F901020918 and waived his rights to any further appeal of the allegations he
raised in Agency Case No. 1F901020918. Therefore, Complainant is barred from raising the
allegations in Agency Case No. 1F901020918 as evidence of harassment in the instant
complaint.

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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.
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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

September 25, 2019
Date