2023004943•EEOC Appeal 2023004943
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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.
2023004943 2 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.
2023004943 3 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.
2023004943 4 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.
2023004943 5 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.
2023004943 6 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.
2023004943 7 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.
2023004943 8 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.
2023004943 9 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
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