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What You Should Know about EEOC and Shelton D. v. U.S. Postal Service (Gadsden Flag case)

  • This decision addressed only the procedural issue of whether the Complainant's allegations of discrimination should be dismissed or investigated. This decision was not on the merits, did not determine that the Gadsden Flag was racist or discriminatory, and did not ban it.
  • Given the procedural nature of this appeal and the fact that no investigative record or evidence had been developed yet, it would have been premature and inappropriate for EEOC to determine, one way or the other, the merits of the U.S. Postal Service's argument that the Gadsden Flag and its slogan do not have any racial connotations whatsoever.
  • EEOC's decision simply ordered the agency - the U.S. Postal Service - to investigate the allegations. EEOC's decision made no factual or legal determination on whether discrimination actually occurred.

Procedural History and Initial Appellate Decision

On January 8, 2014, a U.S. Postal Service maintenance mechanic in Denver, Colorado filed a complaint of discrimination based on race (African American) and reprisal for prior EEO activity when: (1) beginning in the fall of 2013, a coworker repeatedly wore a cap to work with an insignia of a flag with a rattlesnake ready to strike and slogan "Don't Tread on Me," (2) the coworker continued to wear the cap after management had assured Complainant that they would tell the coworker not to, and (3) on September 2, 2013, a coworker photographed him on the work room floor without Complainant's consent. According to the federal sector process, that complaint was filed with the employing agency - the U.S. Postal Service.

On January 29, 2014, the U.S. Postal Service dismissed the complaint for failure to state a cognizable claim of discrimination. On June 20, 2014, the EEOC Office of Federal Operations reversed the agency's dismissal, determining that Complainant had raised a cognizable claim of harassment, and ordered the agency to investigate the claim. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120141334 (June 20, 2014).

Request for Reconsideration

The agency requested the EEOC Office of Federal Operations to reconsider its previous decision. The legal standard for granting such a request is whether the previous decision involved a clearly erroneous interpretation of material fact or law.  The U.S. Postal Service argued that the previous decision clearly erred because the Gadsden Flag and its slogan do not have any racial connotations.

Decision on Reconsideration

Upon review, the EEOC Office of Federal Operations determined that the agency did not meet its legal burden of demonstrating clear error. The EEOC decision sent the matter back to the U.S. Postal Service to investigate the allegations. In doing so, EEOC emphasized in its decision, "we are not prejudging the merits of Complainant's complaint. Instead, we are precluding a procedural dismissal that would deprive us of evidence that would illuminate the meaning conveyed by . . . the display of the symbol."

The Commission noted that, while the Gadsden Flag originated in a non-racial context, it has since been "interpreted to convey racially-tinged messages in some contexts," including its use by persons associated with white-supremacist groups who used the flag to drape the bodies of two police officers they had just murdered, and its display at a Connecticut fire house that was met with protests by African-American firefighters, ultimately resulting in the flag's removal.  Importantly, the Commission did not find that the Gadsden Flag in fact is a racist symbol.  Rather, the Commission found only that the complaint met the legal standard to state a claim under Title VII, and therefore should have been investigated by the agency rather than dismissed.

Legal Standard for a Complaint to State a Claim

Under the regulations set forth at 29 C.F.R. Part 1614, a federal agency must accept a complaint from an 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, 1614.106(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 (Apr. 21, 1994).  With regard to complaints alleging actions that may amount to unlawful harassment, the Commission has long held that a complaint is subject to dismissal for failure to state a claim only where "it appears beyond doubt that the complainant can prove no set of facts in support of the claim that would entitle the complainant to relief," i.e., even if the allegations are taken as true, they do not state a claim upon which relief may be granted.  Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). 

Without the benefit of an investigation, it is impossible to state that this complainant cannot possibly prove a set of facts to support his claim. The Commission accordingly determined that complainant's allegations are sufficient to state a claim. The U.S Postal Service will now undertake to make a determination on the merits of the complaint following an investigation.

Additional Information

Some outlets have erroneously reported that the complainant is employed by a private-sector employer.  The complainant is employed by the U.S. Postal Service, a federal agency.

Some outlets have erroneously reported that EEOC proceedings are conducted in secret, and that EEOC decisions are not made public.  Under the federal-sector EEO complaint process (found at 29 CFR Part 1614), the investigative portion of the proceedings is confidential, up to and including the decision of an EEOC Administrative Judge (AJ) and a Final Agency Decision.

If either party appeals from an AJ Decision or a Final Agency Decision, an appellate decision is issued by the Commission. Appellate decisions are a matter of public record and are available on the Commission's website at The Commission uses an alias when it publishes federal sector decisions to protect the privacy of the Complainant.