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

Equal Employment Opportunity Commission

Sep 17, 2019

2019002518 (E.E.O.C. Sep. 17, 2019)

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

Maynard G.,1
Complainant,

v.

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

Appeal No. 2019002518

Agency No. 4G-335-0234-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated January 15, 2019, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the
Agency’s Post Office in Lithia, FL. On December 26, 2018, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination and a hostile work environment on the
bases of national origin, sex (male), and in reprisal for prior protected EEO activity when:

1. Complainant’s supervisor [S1] showed co-workers Complainant’s EEO paper work,
attempting to affect the outcome of the Agency investigation into Complainant’s prior
EEO complaint;

2. S1 spoke to Complainant in a loud and condescending manner on numerous occasions
and questioned Complainant about various deliveries; 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.
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3. S1 spoke to Complainant without union representation present.

On January 15, 2019, the Agency issued a final decision dismissing claim (1) pursuant to C.F.R.
§ 1614.107(a)(8) for alleging dissatisfaction with the processing of a prior complaint and being an
improper “spin off” complaint. The Agency dismissed claims (2) and (3) pursuant to C.F.R. §
1614.107(a)(1) for failure to state a claim. Complainant timely appealed.

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 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 notes that Title VII’s antiretaliation provision prohibits any adverse treatment
that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from
engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (referring to 42 U.S.C. § 2000e-3(a) (2012)). A complainant may establish a prima facie
case of reprisal by showing that: 1) he engaged in a protected activity; 2) the Agency was aware
of the protected activity; 3) the Agency subsequently subjected him to adverse treatment; and 4) a
nexus exists between the protected activity and the adverse treatment. See Lucas v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence
that the adverse treatment followed the protected activity within such a period and in such a manner
that a reprisal motive is inferred. Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231
(Jan. 25, 2005).

With regard to claim (1), the Commission has held that disclosure of EEO activity by a supervisor
to a Complainant’s coworkers constitutes per se reprisal. Candi R. v. Envtl. Protection Agency,
EEOC Appeal No. 010171394 (Sept. 14, 2018) (finding reprisal where a Regional Counsel for the
Agency sent to all regional office attorneys two emails which contained personally identifiable
and confidential information about Complainant’s prior EEO complaint); Complainant v. Dep’t
of Justice, EEOC Appeal No. 0120132430 (July 9, 2015) (finding reprisal where a supervisor
revealed complainant's EEO activity to coworkers and management); Pruett v. Dep’t of the
Interior, EEOC Appeal No. 012005281 (Sept. 14, 2007) (finding reprisal where in a meeting a
supervisor openly spoke to employees about a complainant’s EEO claims and invited employees
to help him defend against the allegations).

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In the instant case, Complainant alleged that S1 showed co-workers Complainant’s EEO paper
work and believed S1 was attempting to affect the outcome of the Agency investigation into the
prior EEO complaint. As our precedent indicates, disclosure to coworkers of an employee’s EEO
activity constitutes per se reprisal. The Agency improperly dismissed claim 1 as “spin off” from
the underlying EEO claim when it would be, if substantiated, per se reprisal.

Regarding claim (2), a fair reading of the record reflects that Complainant is alleging that he was
subjected to harassment by management when his supervisor aggressively questioned him,
accused him of unfounded mistakes, threatened to take disciplinary action, shouted at him, and
belittled him on numerous occasions. The Commission finds that the Agency improperly
dismissed this claim for failure to state a claim. A complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The trier of fact must consider
all of the alleged harassing incidents and remarks and considering them together in the light most
favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Moreover, regarding the basis of reprisal, the Commission has a policy of considering reprisal
claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No.
05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be
challenged are not restricted to those which affect a term or condition of employment. Rather, a
complainant is protected from any discrimination that is reasonably likely to deter protected
activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998),
at 8-15. In addition, in viewing claims (1) and (2) collectively, in the light most favorable to
Complainant, the Commission finds that Complainant has set forth an actionable claim of
harassment.

However, with regard to claim (3), to the extent that it raises an allegation of a violation of
Complainant's collective bargaining rights to a union representative, such an issue cannot be
addressed through the EEO process. The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of
Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request
No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June
25, 1993). The proper forum for Complainant to raise his claim that he was denied a union
representative is within the negotiated grievance process.

CONCLUSION

Accordingly, the Commission REVERSES the Agency's final decision dismissing claims (1) and
(2) and REMANDS these matters for further processing in according with this decision and the
Order below. The Commission AFFIRMS the Agency’s dismissal of claim (3).

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ORDER (E0618)

The Agency is ordered to process the remanded claims (claims (1) and (2)) 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 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 (K0719)
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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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 (T0610)

This decision affirms the Agency's final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint.
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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

September 17, 2019
Date