By Deryn Sumner
Earlier this week, I spent a few minutes poking around the EEOC’s website to see if there was anything of interest to share with you, our FELTG newsletter audience. I came across a press release titled, “What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case).” The press release talked about a recent Office of Federal Operations decision. As I’m always interested when federal sector cases make it to the EEOC’s newsroom, I read it with interest and ended up a bit bewildered. See, Shelton D. is not a notable decision worthy of a press release. It’s a case holding that an agency improperly dismissed a formal complaint for failing to state a claim, and ordering the agency to reinstate and investigate it. The EEOC issues hundreds of these decisions every year. So why did the EEOC see fit to issue a press release about this decision? https://www.eeoc.gov/eeoc/newsroom/wysk/gadsden-flag.cfm
Well, the case concerns a complainant’s allegation that the U.S. Postal Service created a hostile work environment based on race (African American) and retaliation for prior EEO activity when a co-worker repeatedly wore a hat with the Gadsden Flag on it (commonly known as the “Don’t Tread On Me” insignia), even after management counseled the co-worker not to do so, and subsequently photographed the complainant at work without the complainant’s permission.
The Postal Service dismissed the complaint for failure to state a claim, the complainant appealed, and the EEOC held that it did state a claim, and ordered the agency to investigate it. As everyone familiar with federal sector EEO complaints processing knows, this does not mean that the EEOC found that harassment occurred, that the complainant’s claims currently or subsequently will have merit, or that the complainant is entitled to any relief. The decision was simply a procedural reversal instructing the agency to conduct an investigation so that a record upon which a factfinder could determine if harassment occurred would be created.
But alas, unsupported outrage accounts for most of the Internet these days and those who somehow found out and wrote about the decision, simply put, had no idea what they were talking about. When I searched for references to the decision, I got to see such inflammatory headlines as “Obama Bans Gadsden Flag” and “EEOC Holds Gadsden Flag Is Racist.” Putting aside whether the flag is racist or not, the EEOC made no such determination in its remand of the complaint. The EEOC simply held that under the regulations at 29 CFR 1614.107, the complaint stated a claim that should be investigated. And no, President Obama did not weigh in on the EEOC’s decision.
And now the kicker. The OFO decision remanding the case for investigation was issued in June of 2014. The decision that appears to have caused so much recent angst was the decision denying the agency’s request for reconsideration, again a simple procedural decision that the EEOC issues by the hundreds every year, which was issued on June 3, 2016. Again, the EEOC’s June 2016 decision only instructed the agency to investigate the claims, and did not conclude that the actions alleged constituted actionable harassment.
How about we focus our outrage on more important things, like how the EEOC is so understaffed and overwhelmed that it takes almost three years to get a case remanded for investigation. Sumner@FELTG.com