EEOC Appeal 2020001672

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Damaris M., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 2020001672
Agency No. 4F-940-0063-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 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., 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 Carrier at the
Agency’s Main Post Office facility in Eureka, California.
On October 10, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (Asian), color, and reprisal for prior protected EEO
activity under Title VII of the Civil Rights Act of 1964 when:
1. 	On July 23, 2019, she was given an official discussion and denied union
representation;
2. 	On July 31, 2019, she was verbally attacked by a co-worker and management
to her that she had violated the Hatch Act;
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. 	On August 28, 2019, she received a new job offer which had reduced duties;
and
4. 	On September 28, 2019, her Postmaster witnessed her co-worker being rude
and snappy with her.
The Agency dismissed all of the claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1, 2, and 4
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Thus, not all claims of harassment are actionable. 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, we find that in the instant case,
viewing the allegations together and assuming they occurred as alleged, Complainant fails to state
a viable claim of a discriminatory hostile work environment. The actions alleged, without more,
may have offended Complainant, but are isolated incidents of relatively insignificant severity
under the circumstances as presented by the complaint, and so fail to state a valid hostile work
environment claim.
Claim 3
In claim 3, Complainant challenges the limited duty job offer 2 which she asserts she was forced
into accepting. She did not check the box on her complaint form indicating she was raising a claim
of disability discrimination. However, a fair reading of the complaint, along with the related EEO
counseling report, shows that Complainant intended to raise a claim of disability discrimination
under the Rehabilitation Act.
2 The offer was provided because of Complainant’s accepted workers’ compensation claim.

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In her formal complaint, Complainant explains that the new job offer, provided to her because of
her medical condition, unfavorably changed her duties and reduced her work hours. The EEO
counselor’s report states that Complainant alleged that the new job offer did not comply with her
medical limitations. Complainant further asserted that she was given no choice in the matter and
was ordered to accept the new job offer without consideration of her medical restrictions.
In its decision, the Agency asserted that Complainant was lodging an improper collateral attack on
a decision made by the Department of Labor, the Office of Workers’ Compensation Programs
(OWCP). We disagree. While the offer was made because Complainant had an accepted workers’
compensation claim, the Agency also has concurrent duties to its employees under the
Rehabilitation Act. Under the Rehabilitation Act, the Agency is responsible for providing
reasonable accommodation to its employees with disabilities. A fair reading of Complainant’s
complaint is that she, in essence, is alleging the Agency should have determined whether it could
have accommodated her in her original bid position, as well as make an individualized assessment
as to whether any new position offered was within her medical limitations. As such, we find that
claim 3 states a claim under the Rehabilitation Act.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED in
part and REVERSED in part. Claim 3 is remanded as set forth below.
ORDER (E0618)
The Agency is ordered to process the remanded claim (3) 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.

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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 C.F.R. § 1614.503(f) for enforcement by that agency.
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.

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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. 	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 3, 2020
Date