EEOC Appeal 2020000109

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Will K.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020000109
Hearing No. 551201600003X
Agency No. 1E982000815
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s April 11, 2019
Final 	Order 	concerning 	an 	equal 	employment 	opportunity 	(“EEO”) 	complaint 	alleging
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
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Operations Industrial Engineer, EAS-21, at its Seattle Network Distribution Center ("NDC"),
located in Federal Way, Washington.
On March 17, 2015, Complainant filed an EEO complaint raising the following two issues:
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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I. 	Discrimination and harassment/ hostile work environment on the bases of race (Middle
Eastern, Persian), national origin (Iranian), religion (Islam), and reprisal (prior protected EEO
activity) when:
a. 	On December 18, 2014, his supervisor told him, "Playing politics is what I want
you for,"
b. 	On October 20, 2014, Management advised him during mediation to file a CA-2
Workers' Compensation claim and then later disputed such claim,
c. 	Beginning October 20, 2014, Management followed him at work, interrogated him,
prevented him from speaking on teleconferences, listened to his conversations,
ignored his reported safety concerns, and failed to implement his proposals,
d. 	On December 9, 2014, Management issued him a Performance Improvement Plan
(“PIP”),
e. 	On December 9, 2014, Management punished him by instructing him to take online
communication courses and write down what he learned,
f. 	On December 18, 2014, Management issued him a Letter of Concern,
g. 	On January 30, 2015, Management had a discussion with him regarding his
progress on the PIP, and,
h. 	On an unspecified date, Management prohibited him from communicating via e-
mail after reporting a safety violation to all managers.
II. Discrimination on the bases of age (mid-50’s), disability/perceived disability (adjustment
disorder, depression, and anxiety) and reprisal (prior protected EEO activity) when, in March
2015, the Agency denied his request for reasonable accommodation.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant
timely requested a hearing. The parties engaged in discovery, then the Agency submitted a motion
for a decision without a hearing. The parties agreed to participate in mediation, and when it was
unsuccessful, the matter was reassigned to another AJ. Over Complainant’s objections, the newly
assigned AJ found the record sufficiently developed, and issued a decision by summary judgment
in favor of the Agency on March 29, 2019.
The record developed during the investigation and discovery includes the following evidence:

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Complainant’s position as an Operations Industrial Engineer entailed collaboration on projects
within the NDC and at the national level, requiring strong communication skills to convey
technical information and 	to work collaboratively across different functional and hierarchical
groups. 	Complainant reported to an In-Plant Support Manager, EAS-25 (“M1” Indian, Sikh,
India), and the Plant Manager, PCES-01, (“M2” Caucasian, Protestant, American) throughout the
relevant time frame for this complaint. In or about January 2015, he reported to an Acting In-Plant
Support Manager, EAS-25 (“M3” Caucasian, Christian, American, 48).
On October 20, 2014, Complainant and M1 engaged in mediation and entered into a binding
settlement agreement to resolve an 	EEO complaint where Complainant had named M1 as the
responding management official.2 Term 1 of the Agreement provided that the Agency would
withdraw a September 11, 2014 Letter of Warning (“LOW”) it issued to Complainant regarding
his communications during a national teleconference. Term 3 of the Settlement Agreement states:
“Management will provide coaching for [Complainant] to enhance communication within the
organization and management will evaluate changes suggested by [Complainant.]”
Issue I
During the October 20, 2014 mediation, Complainant revealed that he was experiencing work-
related stress. M1 responded that the proper venue to file a claim for work-related injuries was the
Department of Labor (“DOL”) Office of Workers Compensation Programs (“OWCP”), and that
Complainant could do so by submitting a Form “CA-2.” A few days later, Complainant submitted
a CA-2 to the Agency’s Office of Health and Resource Management (“HRM”). He included a
narrative statement explaining that he was experiencing neck pain caused by anxiety and stress
from work. He also referenced the October 20, 2014 settlement agreement, specifying that “the
mutual agreement was for me to file a CA-2 for medical compensations.” Complainant did not
include any supporting medical documentation.
In an October 24, 2014 letter, HRM advised Complainant that if the neck injury and anxiety
detailed in CA-2 rendered him unable to work, Complainant would have to provide medical
documentation to his supervisor. HRM further advised Complainant to complete and submit an
enclosed Form “CA-35A.” 	Among other things, the CA-35A provided a check list of specific
evidence that the OWCP would accept in support of a Workers Compensation Claim, including,
“attach or forward a medical report from your physician,” followed by a bulleted list of specific
information to include in the report. When Complainant failed to respond, the HRM Manager
challenged Complainant’s OWCP claim on November 5, 2014.
2 Complainant’s assertion that M1 and M2 were required under the October 20, 2014 settlement
agreement to provide him compensation by approving his OWCP claim requires an interpretation
of the settlement agreement itself, and was properly raised in a breach of settlement claim, outside
the scope of the instant complaint.

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On December 9, 2014, M1 issued a Performance Improvement Plan (“PIP”) for the stated reason
of complying with October 20, 2014 settlement agreement, as “a coaching opportunity… to
improve the communication related issues to an acceptable level.” 	The PIP identified two
“Unacceptable Performance Deficiencies” and directed Complainant to improve performance in
these areas to “good or acceptable” rating by April 30, 2015. Under the PIP, Complainant was
required to attend a training on communication/coaching, and a seminar on communication
behavior by December 23, 2014. 	In addition, M1 would provide Complainant with “ongoing
coaching opportunities/training opportunities” through March 20, 2016.
On December 18, 2014, OWCP denied Complainant’s claim, citing the lack of medical evidence.
The next day, a Postal Health and Human Resource Specialist notified Complainant, M1, and M2
that Complainant’s claim had been denied, and referenced Complainant’s option to appeal.
Complainant states that he felt humiliated by the denial, having entered the settlement agreement,
but does not dispute that he took no further action.
Also on December 18, 2014, M1 discussed Complainant’s performance with him and issued a
Letter of Concern (“LOC”) reiterating the discussion. 	In the LOC, M1 included a timeline
provided a timeline of incidents pre-dating the instant complaint, including matters that were raised
in the October 20, 2014 settlement agreement that the Agency agreed to remove from
Complainant’s record.
On January 30, 2015, M3, who had been on the job in an acting capacity for two weeks, conducted
a PIP progress meeting with Complainant. 	M3 informed Complainant that he was under
performing and Complainant provided status updates.
By Complainant’s account, throughout this time frame, he experienced harassment and a hostile
work environment under M1, M2 and M3.
Issue II
In February 2015, Complainant submitted multiple medical notes to the Agency. M3 interpreted
the documents (and Complainant’s act of submitting medical documents), as a request for
reasonable accommodation, so he referred the medical documents to the District Reasonable
Accommodation Committee (“DRAC”) on February 11, 2015. M3 did not consult Complainant
before doing so, and Complainant later contended that this was not his intention to request a
reasonable accommodation.
On March 25, 2015, Complainant contacted DRAC officials, explaining that he did not require an
accommodation. However, he also stated: “I still believe I would be able to perform my job
functions when I return to duty as long as I feel safe and secure at work which is impossible at my
current work location and under current management.” The supporting medical documentation
provided Complainant’s anxiety diagnosis and indicated that Complainant could not work for M1.

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On March 27, 2015, DRAC issued a determination that due to Complainant’s diagnoses, and his
statements, there was no available reasonable accommodation that could allow him to return to
work, much less perform the essential functions of his position. Complainant contacted the HR
Manager for clarification, explaining that he did not request a reasonable accommodation.
Based on this evidence, the AJ issued a decision by summary judgment in favor of the Agency.
The Agency’s Final Order adopted the AJ’s finding that Complainant had not been subjected to
discrimination or retaliation as alleged. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105
(1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 	In
rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s Final Order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that the
agency was motivated by discriminatory animus.
AJ Abuse of Discretion
The AJ shall have the power to regulate the conduct of a hearing. 29 C.F.R. § 1614.109(e). The
AJ has full responsibility for the adjudication of the complaint. EEO Management Directive 110
(“MD-110”) (Aug. 5, 2015), Ch. 7 § III(D). This responsibility gives the AJ wide latitude in
directing the terms, conduct, or course of EEOC Administrative hearings. Douglas F. v. Equal
Employment Opportunity Commission, EEOC Appeal No. 0120122183 (Dec. 4, 2015) citations
omitted.
Complainant argues abuse of discretion by the AJ when his two motions to compel the Agency to
respond to his discovery requests were denied. Where, as here, the information requested is already
contained in the ROI, or outside the scope of the claims at issue, we have found an AJ’s decision
not to compel further discovery to be proper. See Robinson v. United States Postal Serv., EEOC
Appeal No. 0120101782 (Aug. 27, 2010).

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As for Complainant’s frustration that not all of his arguments were addressed by the AJ, we note
that a significant portion of Complainant’s arguments concern allegations outside the scope of the
subject matter and time frame of his complaint. We find no error or abuse of discretion by the AJ
has been established.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the
Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant
bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence
that the Agency acted on the basis of a prohibited reason. 	St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
An employer has the discretion to determine how best to manage its operations and may make
decisions on any basis except a basis that is unlawful under the discrimination statutes. Furnco,
Nix 	v. 	WLCY 	Radio/Rayhall 	Communications, 	738 	F.2d 	1181 	(11th 	Cir. 	1984). 	The
reasonableness of the employer's decision may, of course, be probative of whether it is pretext.
The trier of fact must understand that the focus is to be on the employer's motivation, not its
business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). Moreover, it
bears noting that an agency is not required to refrain from non-discriminatory personnel actions it
would otherwise take simply because the employee has engaged in EEO activity. See Sotomayer
v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
The Agency offers the same legitimate non-discriminatory reasons for its actions in Claim I.d, the
December 9, 2014 PIP, Claim I.f, the December 18, 2014 LOC, Claim I.e, online coursework, and
Claim I.g, where M3 completed Complainant’s PIP progress review on January 30, 2015: to
improve Complainant’s performance, and to comply with the October 20, 2014 settlement
agreement.

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Complainant 	expresses 	his 	disagreement 	with 	the 	Agency’s 	business 	judgment, 	such 	as
coursework assignments, conduct during teleconferences, and decisions not to adopt his forklift
proposal and other safety recommendations. 	However, Complainant has not shown that the
Agency’s actions were unreasonable to indicate pretext for retaliation and discrimination. For
instance, he argues that the training courses M1 assigned him were unreasonable, as the content
was not engineering-specific, yet the record reflects that the coursework related to communication
skills, consistent with the PIP and the October 20, 2014 settlement agreement. Likewise, we do
not find M1’s requirement that Complainant provide a written a summary of the training to be
“unreasonable,” evincing pretext, simply because Complainant would have preferred to print out
a certificate of completion instead.
Another example Complainant provides occurred when M3 evaluated his performance for his PIP
on January 30, 2015, and erroneously accused him of making an unauthorized purchase of easels.
At the time it was frustrating for Complainant, however, we do not find M3’s actions unreasonable.
Complainant acknowledges that at the time of their PIP progress meeting, M3 did not know
Complainant was asked by Management to request the purchase, and that upon finding out, M3
corrected the error. Complainant felt it was unreasonable for M3, a new “acting” manager to
discuss his PIP with him, but the record reflects that M3, as Complainant’s manager at the time,
acted within the scope of his supervisory authority. The PIP itself directs Complainant to
participate in monthly progress meetings with his supervisor.
Complainant theorizes that the timing of the LOC, which was issued the same day his OWCP
claim was denied, indicates retaliation. Other than Complainant’s assertion, we find no evidence
that these actions were connected, and if they were, how this would state a claim of discrimination
or retaliation. An allegation of retaliation for filing a claim for workers compensation must be
raised with OWCP, as it is outside EEOC jurisdiction.3
The remainder of Complainant’s evidence, primarily excerpts from emails, does not address his
work performance. Also, Complainant has not established that the PIP and LOC were unreasonable
in terms of business judgment. Thus, without more, Complainant's argument that the Agency's
articulated reasons for its actions were a pretext for discrimination are insufficient to create a
question of material fact warranting a hearing or result in a finding of discrimination.
3 Complaints involving other administrative proceedings, including those involving OWCP and its
related processes, do not state a claim within the meaning of the Commission’ regulations. Bell v.
Dep’t of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001) (agency’s alleged failure to
ensure that records related to an OWCP claim were accurate and complete, and that it allegedly
falsified OWCP documents, does not state a claim), Hogan v. Dep’t of the Army, EEOC Request
No. 05940407 (Sept. 29, 1994). The proper venue for Complainant to appeal his denied OWCP
claim is with the OWCP. Therefore we will not address Complainant’s arguments related to the
processing of his CA-2, and we will limit our analysis to the fact that M1 informed Complainant
that he could file a claim with OWCP.

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Reasonable Accommodation
The Commission's regulations require agencies to make reasonable accommodations for the
known physical and mental limitations of a qualified individual with a disability unless it can show
that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A
reasonable accommodation is an adjustment or change at work for a reason related to a medical
condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20,
2015), citing EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
under the Americans with Disabilities Act, EEOC Notice No. 915.002, Question 1 (Oct. 17, 2002).
An employee is not required to use the "magic" words "reasonable accommodation" when making
a request. Instead, the employee or the employee's representative need only inform the Agency
that he or she needs an adjustment or change at work for a reason related to a medical condition.
See Triplett-Graham v. United States Postal Serv., EEOC Appeal No. 01A44720 (Feb. 24. 2006).
Agencies are required to engage in an interactive process with employees regarding reasonable
accommodations, and employees who refuse to cooperate in that process are not entitled to an
accommodation. See Carleen L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120151465
(May 12, 2017), EEOC Notice No. 915.002 at Q. 6.
Although Complainant did not articulate that he was an individual with a disability requesting a
reasonable accommodation, we find that M3 appropriately interpreted Complainant’s submission
of medical documentation, indicating that Complainant was prevented from working due to a
medical condition, as a request for a reasonable accommodation. M3’s actions in this respect are
not evidence of discrimination or retaliation, as alleged by Complainant.
Complainant’s statements in the record are inconsistent with his claim that he was denied a
reasonable accommodation. Assuming, arguendo, that Complainant is a qualified individual with
a disability who requested a reasonable accommodation, there is no evidence that he engaged in
the interactive process which is central to the whole accommodation process. Moreover, the DRAC
properly determined that Complainant’s medical documentation, which stated that he could not
perform the essential functions of his position at his current worksite or under his current
supervisors, indicated that there was no viable reasonable accommodation available to him. When
he received the DRAC’s decision, Complainant did not submit any updated documents indicating
he was medically able to perform the essential functions of his position, nor did he exhibit an
interest in participating in the interactive process.
To the extent that Complainant was attempting to use the reasonable accommodation process to
obtain a reassignment, we have long held that reassignment is an “accommodation of last resort”
that should only be utilized after a determination has been made that there are no other
accommodations that would enable him or her to perform the essential function of his current
position without imposing an undue hardship upon the Agency. Zachary K. v. Dept. of Veterans
Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). As Complainant did not engage in the
interactive process, the Agency was not obligated to provide him with this accommodation. See
Oda H. v. United States Postal Serv., EEOC Appeal No. 0120151451 (Jul. 26, 2017).

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Harassment
To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. 	Complainant must also prove that the conduct
was taken because of his membership in a protected class and/or his prior EEO activity. Only if
Complainant establishes both of those elements, hostility and motive, will the question of Agency
liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice
915.002 (June 18, 1999).
We have long held that routine work assignments, instructions, and admonishments constitute
“common workplace occurrences” that do not rise to the level of harassment. See Gray v. United
States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. To the extent
Complainant alleges that he was subject to stricter communication requirements and excessively
monitored by management, we have previously found similar claims, while unpleasant, are also
“common workplace occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No.
01973328 (Feb. 18, 2000), Carver v. United States Postal Serv., EEOC Appeal No. 01980522
(Feb. 18, 2000) (A supervisor questioning an employee with respect to their duties, even if done
in a confrontational manner, is a “common workplace occurrence.”)
Claims I.d, I.e, I.f, I.g, and Issue II will not be considered in the harassment analysis, as we already
determined that Complainant did not establish that the Agency acted with discriminatory or
retaliatory motive. The record does not support that Claim I.8 occurred as alleged. Complainant’s
remaining claims, assuming, arguendo, that the actions occurred as alleged and during the time
frame for the instant complaint, are common workplace occurrences that do not constitute
harassment, even when considered together.
To support his allegation in Claim I.h, Complainant provides an email from M1 to Complainant
after Complainant sent out a group email about a safety repair issue. In it, M1 stated: “I think a
phone call or one on one would have been sufficient to resolve this issue? As I’ve discussed, this
[could have been] easily resolved by giving him a call versus this email tag team approach that not
getting any result.” We find that Complainant’s proffered evidence, rather than demonstrate that
M1 prohibited Complainant was from communicating by email as alleged, reveals an instance
where M1 provided feedback on the most effective way for Complainant to communicate in a
specific situation. Advice from a supervisor is a “common workplace occurrence” that does not
constitute harassment. Likewise, the email evidence Complainant provided in support of the
allegations in Claim I.c, such as Management allegedly “interrogating” him about his whereabouts
during work hours, only establishes instances where Management acted within the scope of its
authority, issuing routine work assignments, instructions, and admonishments. With respect to
Claim I.b, where M1 informed Complainant that he could file a workers’ compensation claim with
OWCP if he experienced a workplace injury, information that Management is required to provide
to injured employees, also describes a common workplace occurrence, not harassment.

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Even if the alleged actions could be considered harassment, Complainant repeatedly raises
arguments indicating that his harassment claims are not EEO matters. He attributes the Agency’s
alleged harassment in Claims I.a, I.c, and I.h to retaliation for his refusal to “play the game,” i.e.
participate in the Agency’s alleged “corruption.” Complainant describes how he stood up to
Management when they allegedly asked him to falsify documents to conceal safety violations and
to submit fictitious reports, and as a result, he was punished for it with the alleged harassment
raised in the instant complaint. The activity Complainant describes as underlying his harassment
allegations is not protected under EEO Statutes, and would not state a viable claim of
discrimination.4
Retaliation
When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process
– the ultimate tool that employees have to enforce equal employment opportunity - the behavior
can be a violation of the anti-retaliation provisions of the employment discrimination statutes.
Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). 	For instance,
comments that, on their face, discourage an employee from participating in the EEO process
violate the letter and spirit of the EEOC regulations and can establish what is sometimes referred
to as a “per se” violation of the law. See Leisa C. v. Dep’t of Defense, EEOC Appeal No.
0120132212 (Nov. 8, 2013) citing Binseel, see, e.g. Ashby v. Dep't of the Treasury, EEOC Appeal
No. 0120090364 (Feb. 27, 2012), recon. den., EEOC Request No. 0520120435 (July 12, 2012)
(per se violation found where Complainant’s supervisor mentioned Complainant’s prior EEO
activity to another colleague and made inappropriate comments about Complainant’s EEO
complaints). In the instant complaint, Complainant appropriately points out that the LOC included
reference to his protected EEO activity.5
In the LOC, M1 provides a timeline of “events” to support his assertion that Complainant’s “job
performance has been unsatisfactory, and informal efforts to correct these deficiencies have not
caused [Complainant] to change his behavior.”
4 Safety violations, or concerns about reporting alleged workplace safety violations, may be raised
with the DOL Occupational Health and Safety Administration (“OSHA”). See Complainant v.
United States Postal Serv., Appeal No. 0120151653 (Aug. 14, 2015). If Complainant is alleging
retaliation for whistleblower activity, such claims must be raised under the Whistleblower
Protection Act because the Commission does not have jurisdiction over Whistleblower Protection
Act claims. 	See Reavill v. Dep’t of the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
Alternately, Complainant could contact the appropriate Postal Inspector General within the
Agency.
5 Complainant’s observation that the LOC’s inclusion of the September 11, 2014 LOW and its
underlying events violated Term 1 of the October 20, 2014 settlement agreement, is a breach of
settlement claim outside the scope of this complaint. Also outside the scope of this complaint, as
it is an OWCP issue, we note that the LOC also inappropriately lists that on October 23, 2014
Complainant “claimed work related illness/injury for stress” essentially equating filing an OWCP
claim, which is Complainant’s right, with poor performance.

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On this list were the October 20, 2014 EEO settlement agreement, and that on December 11, 2014
(one week earlier), Complainant “claimed discrimination and harassment at work, currently being
investigated.” The list is immediately followed by the stated intent of the LOC, which was for M1
to “discuss [his] concerns and to make sure [Complainant] clearly understood how serious this
matter is.”
We find the reference to Complainant’s protected activity in this context was reasonably likely to
either deter Complainant or others from engaging in the EEO process. 	Therefore, although
Complainant ultimately has not demonstrated that the LOC itself was unwarranted, the Agency is
still liable for per se retaliation with regard to some of the language used in the LOC.
We remind the Agency that that it has a continuing duty to promote the full realization of equal
employment opportunity in its policies and practices. 29 C.F.R. §1614.101 This duty extends to
every aspect of agency personnel policy and 	practice in the employment, development,
advancement, and treatment of employees. Agencies are obligated to "insure that managers and
supervisors perform in such a manner as to insure a continuing affirmative application and
vigorous enforcement of the policy of equal employment opportunity. 29 C.F.R. §1614.102(5).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s final order accepting the AJ’s finding on
the merits of his claims. We REMAND the complaint to the Agency to address matter of per se
retaliation, in accordance with the Order provided below.
ORDER
Within thirty (30) calendar days of the date this decision was issued, the Agency is ordered to
ensure that M1, M2, and M3 each meet separately with an EEO Officer, HR Specialist, or other
Agency official with professional expertise on EEO procedure and EEO rights, for one hour of
individualized in-person training and discussion of retaliation under EEO statutes in relation to
their role as management officials. The training/discussion must address how the LOC in the
instant complaint constituted retaliation per se, in violation of Title VII, as well as a plan to avoid
retaliation per se going forward.
If the Agency is unable to comply because M1, M2, and/or M3 have since left the Agency, it can
establish compliance by providing the supporting personnel documentation of their departure.
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." 	The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation of the Agency's calculation of back pay and
other 	benefits 	due 	Complainant, 	including 	evidence 	that 	the 	corrective 	action 	has 	been
implemented.

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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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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 Operations (OFO)
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).

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, 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, complainant’s request to reconsider
shall be deemed timely filed if OFO 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 his or her request via the EEOC Public Portal, in which case no proof of service
is required.
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(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.

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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
October 26, 2020
Date