EEOC Appeal 2023004943

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Jacquetta C.,1
Complainant,
v.
David Steiner,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 2023004943
Agency No. 4J-400-0060-23
DECISION
Complainant 	filed 	a timely 	appeal 	with the Equal Employment 	Opportunity
Commission (EEOC or Commission) from the Agency's decision dated August 3,
2023 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 Age Discrimination in Employment Act of 1967 (ADEA) as
amended, 29 	U.S.C. § 	621 	et 	seq. Upon 	review, 	the 	Commission 	finds 	that
Complainant's complaint was improperly dismissed.
At the time of events giving rise to this complaint, Complainant worked as a
Postmaster at the Agency’s facility in Phelps, Kentucky.
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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On April 21, 2023, Complainant initiated EEO Counselor contact. On July 10, 2023,
Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the basis of age (over 40), and in reprisal for prior protected EEO
activity when:
1. On July 22, 2022, Complainant was placed on Administrative Leave
pending an investigation; and
2. On or around April 17, 2023, Complainant was issued a Proposed
Removal.
In her formal complaint, Complainant asserted that under the direction of the
Manager of Post Office Operations (the Manager), the Prestonsburg Postmaster and
the Pikeville Postmaster conducted an audit on her performance. She noted that the
Prestonsburg Postmaster later made a publicly ageist comment and stated to a
younger 	subordinate 	employee 	(the 	Head 	Clerk) 	that 	she 	should 	apply 	for
Complainant’s position. Complainant further noted that after she made a complaint
of harassment to the Manager, she was placed on Administrative Leave by the
Manager, which she asserted subsequently turned into the Manager proposing her
removal. Complainant asserted that the investigation and subsequent proposed
removal, were all part of a continuing action to discriminate against her based on her
age and in retaliation for engaging in protected activity. Complainant asserted that
the Agency’s actions ostracized her, tarnished her otherwise unblemished federal
career, caused her to feel intense anxiety and humiliation, particularly in her small-
town community, and overall, negatively impacted her mental and emotional health.
On August 3, 2023, the Agency dismissed Complainant’s complaint. Notably, the
Agency failed to include age as a basis of discrimination, which was clearly listed
in her formal complaint. The Agency noted that while claim 1 occurred on July 22,
2022, Complainant did not initiate EEO Counselor contact until April 21, 2023. The
Agency determined that the contact was well beyond the 45-day regulatory time
limitation, and that Complainant failed to demonstrate sufficient reason for tolling
the time frame. Accordingly, the Agency dismissed claim 1 pursuant to 29 C.F.R.
§1614.107(a)(2) for untimely EEO Counselor contact. Alternatively, the Agency
also dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim finding that Complainant was not aggrieved as she did not relate a loss of a
term, condition, or privilege of employment.

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Regarding claim 2, the Agency determined that the removal was only a proposed
action, and that Complainant did not suffer any actual loss. Accordingly, the Agency
dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(5) because it only involved
a proposed action. The instant appeal followed.
STANDARD OF REVIEW
The Agency’s decision to dismiss a complaint is subject to de novo review by the
Commission, which requires the Commission to examine the record without regard
to the factual and legal determinations of the previous decision maker and issue its
decision 	based 	on 	the Commission’s 	own 	assessment 	of the record 	and 	its
interpretation of the law. The Commission should construe the complaint in the light
most 	favorable 	to 	the 	complainant 	and 	take 	the 	complaint’s 	allegations 	as
true. 	Thus, all reasonable inferences that may be drawn from the complaint’s
allegations must be made in favor of the complainant.
ANALYSIS
Untimely EEO Counselor Contact
EEOC 	Regulation 	29 	C.F.R. 	§ 	1614.105(a)(1) 	requires 	that 	complaints 	of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (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.
Complainant asserts in the informal and formal complaints and on appeal, that she
has been subjected to ongoing hostile work environment. Claim 2, proffered in
support of her harassment claim, occurred within the 45-day limitation period. 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 RR Passenger
Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). 	Applying Morgan, the
Commission has held that “[b]ecause the incidents that make up a hostile work
environment claim collectively constitute one unlawful employment practice, the
entire claim is actionable, as long, as at least one incident that is part of the claim
occurred within the filing period.

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This includes incidents that occurred outside the filing period that the [Complainant]
knew or should have known were actionable at the time of their occurrence.” EEOC
Compliance Manual, Section 2, Threshold Issues at 2 – 75 (revised July 21, 2005).
Claim 2, which is part of Complainant’s hostile work environment claim, occurred
within the 45-day time preceding Complainant’s April 21, 2023 EEO counselor
contact. Additionally, a fair reading of the record reflects that Claim 1, was identified
by Complainant as part of an ongoing harassment claim by the same management
official, the Manager. Complainant asserted that the Manager placed her on leave
after she filed a harassment complaint regarding the Prestonsburg Postmaster, and
the Manager also subsequently issued the proposed notice of removal. Accordingly,
we find that the Agency improperly dismissed Claim 1 on the grounds of untimely
EEO counselor contact. Margeret M. v. U.S. Postal Serv., EEOC Appeal No.
0120181767 (Aug. 15, 2018) (the agency erred in separating claims that involved
the same supervisor).
Failure to State a Claim
In addition, the Agency improperly dismissed Claim 1 for 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 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 (April 21, 1994).
Contrary to the manner in which the formal complaint was identified in the final
decision, 	the 	instant 	formal 	complaint 	and 	EEO 	Counselor's 	Report 	reflect
Complainant’s 	assertion 	that 	she 	was 	subjected 	to 	an 	ongoing 	hostile work
environment based on her age and in reprisal for protected activity. This harassment
included being asked by the Prestonsburg Postmaster on the workroom floor, in front
of the entire staff, when she would be retiring, and then turning to a younger
subordinate, 	the 	Head 	Clerk, 	and 	informing 	her 	that 	she 	should 	apply 	for
Complainant’s position.

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In addition, the harassment included being placed on administrative leave by the
Manager, for well over a year, less than one month after the comment was made and
days after she complained of the Prestonsburg Postmaster’s comment to the
Manager. 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); see also Gilberto S., v. Dep’t of the Air Force,
EEOC Appeal No. 0120151198 (Mar. 11, 2016); Jeremy S., v. U.S. Postal Serv.,
EEOC Appeal No. 0120160655 (Mar. 1, 2016).
Proposed Action
EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the Agency shall dismiss
a complaint that alleges a proposal to take a personnel action is discriminatory,
unless the complaint alleges that the proposal or preliminary step is retaliatory.
Complainant is alleging that the proposed removal in retaliation for her complaint
of harassment and to further create a hostile work environment. 	Clearly, Claim 2
was improperly dismissed as a proposed action.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is
REVERSED. The complaint is hereby REMANDED to the Agency for further
processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to process the remanded claims (harassment/hostile work
environment in violation of Title VII and ADEA) 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 becomes final. 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 becomes final,
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.

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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, or a copy of the final agency decision
(“FAD”) if Complainant does not request a hearing.
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 C.F.R. § 1614.503(f) for
enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the request,
that 	statement 	or 	brief 	must 	be 	filed 	together 	with 	the 	request 	for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within 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).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.

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Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented
the timely filing of the request. Any supporting documentation must be submitted
together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0124)
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 their 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.

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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:
T. Gimbrere 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 21, 2026
Date