Tyra T.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

May 3, 2019

EEOC Appeal No. 2019002290 (E.E.O.C. May. 3, 2019)

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

Tyra T.,1
Complainant,

v.

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

Appeal No. 2019002290

Agency No. 4J-530-0118-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency final decision dated October 31, 2018, dismissing a formal
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., Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Window Clerk/Sales Associate, PS-6, at the
Agency’s Main Post Office in Kenosha, Wisconsin.

On October 16, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on disability and age.

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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The Agency determined that the instant formal complaint was comprised exclusively of the
following two claims:

1) on July 6, 2018, her supervisor, the Lead Sales and Service
Associate, put Complainant down, lied to the postmaster about
Complainant’s work performance, and tried to provoke
Complainant into doing something to get her fired; and

2) n September 29, 2018, Complainant requested an Office of
Workers’ Compensation Programs (OWCP) form and management
told Complainant she requested the wrong form.

On October 31, 2018, the Agency issued a final decision dismissing the formal complaint pursuant
to 29 C.F.R. § 1614.107(a)(1). The Agency also expressly determined that the matter which it
identified as claim 2 was an impermissible collateral attack on the OWCP process.

The instant appeal followed. On appeal, Complainant’s representative argues that the Agency had
improperly defined Complainant’s claims narrowly with two incidents as opposed to a continuous
hostile work environment.

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 29 C.F.R. §1614.103. In order to establish standing initially
under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant for
employment of the agency against which the allegations of discrimination are raised. In addition,
the claims must concern an employment policy or practice which affects the individual in his or
her capacity as an employee or applicant for employment. 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; §1614.106(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).

In the formal complaint and on appeal, Complainant asserted that her discrimination claims
involved more than the two incidents the Agency described in a piecemeal manner. Here, in
addition to the Agency’s failure to provide the correct OWCP form and being disparaged by her
supervisor, Complaint also alleged the Agency had summarily denied her request for an ergonomic
chair and frequently relegated her to the least desirable assignments such as working in the lobby.
Instead of treating these additional matters as part of an alleged pattern of harassment, the Agency
improperly identified the formal complaint as being comprised of two distinct events and then
dismissed both individually.

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The Commission has previously held that an agency should not ignore the “pattern aspect” of a
complainant’s claims and define the issues in a piecemeal manner where an analogous theme unites
the matters complained of. Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994). By alleging a pattern of harassment, Complainant has stated a cognizable
claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303
(November 12, 1993).

CONCLUSION

The Agency’s final decision to dismiss the formal complaint is REVERSED. The formal
complaint, defined as a harassment claim, is REMANDED to the Agency for further processing
in accordance with the ORDER below.2

ORDER (E0618)
The Agency is ordered to process the remanded claim (ongoing harassment/hostile work
environment) 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 (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).

2 We note, however, that to the extent that Complainant alleges matters relating to an OWCP claim,
she cannot use the EEO process to lodge a collateral attack on the OWCP process. See, e.g., Lopez
v. Dep’t of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
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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, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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
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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.
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

May 3, 2019
Date