Lida G.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019003250 (E.E.O.C. Sep. 11, 2019)

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

Lida G.,1
Complainant,

v.

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

Appeal No. 2019003250

Agency No. 4B-070-0072-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 14, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sales, Service, and
Distribution Associate at an Agency post office in Somerville, New Jersey. On January 16,
2019, Complainant initiated EEO contact alleging that the Agency subjected her to hostile work
environment harassment on the bases of race (Black), national origin (Hispanic), and sex
(female) when:

1. on January 7, 2018, a Customer Service Supervisor (S1) made
inappropriate sexual comments to her,2 and

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 Complainant alleged that S1 consistently made inappropriate sexual comments to her and she
felt uncomfortable working with him alone in the evenings. Complainant stated that she
requested a change in duty hours or a transfer.
2019003250

2

2. on February 12, 2019, a Lead Clerk (S2) threatened Complainant by using
obscene language at her and following her on the workroom floor.

Complainant alleged that management failed to take appropriate corrective action in response to
the actions of S1 and S2. On February 22, 2019, Complainant filed a formal complaint
reiterating the above claim of harassment based on sex.

In a final decision dated March 14, 2019, the Agency dismissed Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a). The Agency found that claim (1) states the same claim that
is pending before or has been decided by the Agency or Commission. The Agency stated that
Complainant raised the same claim in Agency Numbers 4B-070-0052-18 and 4B-070-0116-18.3
The Agency also stated, as to claim (1), Complainant raised the incident in an untimely manner
with an EEO Counselor. Regarding claim (2), the Agency found that the incident alleged did not
rise to the level of a hostile work environment or effect the terms, conditions, or privileges of
employment for Complainant.

The instant appeal from Complainant followed. On appeal, Complainant stated, on March 8,
2018, she signed the withdrawal of 4B-070-0052-18 under duress by the Somerville Postmaster
(P1). Complainant stated, on March 8, 2018, P1 asked her if S1 made any sexual comments
recently and she informed P1 that S1 last made improper comments on January 12, 2018.
Complainant stated that she felt pressure to sign the complaint withdrawal, and that she still feels
effects from the harassment.

3 The record contains an Information for Pre-Complaint Counseling form (filed December 15,
2017 by Complainant) for Agency Number 4B-070-0052-18. In the pre-complaint, Complainant
alleged, on December 8, 2017, management would not allow her to depart early to pick up her
stepdaughter from school and, on December 2, 2017, S1 stated “I could not see anything with all
that ass in my face” while smiling at Complainant. Complainant also alleged that S1 made other
inappropriate comments about her body, and asked “if you didn’t have a boyfriend would we be
having sex.” On March 8, 2018, Complainant withdrew 4B-070-0052-18 prior to mediation.

The record also contains an Information for Pre-Complaint Counseling form (filed March 26,
2018 by Complainant) for Agency Number 4B-070-0116-18. In the pre-complaint, Complainant
alleged, on March 9, 2018, the Postmaster issued her a Letter of Warning (LOW) for filing
sexual harassment claims against S1. The LOW alleged that Complainant contacted S1’s wife
alleging S1 sexually harassed her and Complainant denied said contact when questioned by the
Postmaster.
2019003250

3

ANALYSIS AND FINDINGS

Same Claim and Untimely EEO Contact

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that
states the same claim that is pending before or has been decided by the Commission or the
Agency. To be dismissed as the “same claim,” the present formal complaint and prior
complaints must have involved identical matters. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 5, IV.A.5 (as revised
August 2015)(citing Terhune v. U.S. Postal Service, EEOC Request No. 05950907 (July 18,
1997); Russell v. Dep't. of the Army, EEOC Request No. 05910613 (August 1, 1991)). It has
long been established that “identical” does not mean “similar.” The Commission has
consistently held that in order for a formal complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint in time, place, incident,
and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996).

We find that the Agency improperly dismissed (1) as stating the same claim articulated in
Agency Numbers 4B-070-0052-18 and 4B-070-0116-18. Here, Complainant alleged
inappropriate sexual comments by S1 in January 2018. In 4B-070-0052-18, Complainant
alleged, on December 8, 2017, management did not allow her to leave work early and, on
December 2, 2017, S1 stated “I could not see anything with all that ass in my face” while smiling
at Complainant. Complainant alleged other inappropriate sexual comments by S1, such as “if
you didn’t have a boyfriend would we be having sex.” Complainant withdrew 4B-070-0052-18,
she states under duress. In 4B-070-0116-18, Complainant alleged, on March 9, 2018, the
Agency issued her a LOW for filing sexual harassment claims against S1. We find that claim (1)
alleged here and the actions alleged in 4B-070-0052-18 and 4B-070-0116-18 are not identical in
time, place, incident, and parties.

Notwithstanding our finding of improper dismissal under 29 C.F.R. § 1614.107(a)(1) for same
claim, we find proper dismissal for untimely EEO contact. EEOC Regulation 29 C.F.R.
§1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R.
§1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of 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). EEOC Regulation allows the Agency
or the Commission to extend the time limit if the complainant can establish that Complainant
was not aware of the time limit, that Complainant did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that despite due diligence
Complainant was prevented by circumstances beyond her control from contacting the EEO
Counselor within the time limit, or for other reasons considered sufficient by the Agency or
Commission.

2019003250

4
Additionally, the Supreme Court has held that a complainant alleging a hostile work environment
will not be time barred if all acts constituting the claim are part of the same unlawful practice and
at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S. Ct. 2061 (June 10, 2002).

We find that the Agency properly dismissed claim (1) for untimely EEO Counselor contact.
Complainant alleged, in January 2018, S1 made inappropriate sexual comments to her, but
Complainant did not initiate contact with an EEO Counselor until January 16, 2019, which is
beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no
persuasive arguments or evidence warranting an extension of the time limit for initiating EEO
Counselor contact. Ironically, the January 2018 incidents could have been used to support
Complainant’s allegation of sexual harassment in 4B-070-0052-18, but Complainant withdrew
that matter on March 8, 2018.

Failure to State a Claim

The regulation 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 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,
disabling condition, genetic information, or reprisal. 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 (April
21, 1994).

Further, where a complaint does not challenge an agency action or inaction regarding a specific
term, condition or privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). As noted by the Supreme Court in Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment’.

Following a review of the record, the incident alleged in (2) fails to state a claim. We find that
Complainant has not alleged facts that, if proven true, would establish a harm or loss with respect
to a term, condition, or privilege of employment or are sufficiently severe or pervasive to rise to
the level of a hostile work environment. We note that the incidents alleged in (1) and (2) are not
part of the same unlawful practice.
2019003250

5

CONCLUSION

We AFFIRM the Agency's final decision dismissing Complainant's complaint.

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).
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.
2019003250

6
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

September 11, 2019
Date