[Redacted], Darell B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2021004164 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darell B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004164 Agency No. 4C-080-0145-20 DECISION On July 12, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 11, 2021, final decision concerning his 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. At the time of events giving rise to this complaint, Complainant worked as a MH-05 Group Leader Mail Handler at the Agency’s Trenton, New Jersey, Processing and Distribution Center. On December 7, 2020, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him on the bases of race (Black) and reprisal for prior protected EEO activity (contacting an EEO counselor to initiate the instant complaint) when: 1. On or around August 27, 2020, a supervisor (Supervisor1) yelled at him and waved her hands in his face on the workroom floor; 2. On or around September 4, 2020, the Plant Manager tried to coerce him to drop his EEO and said he knows murderers at the Post Office; 3. On or around October 17, 2020, a manager yelled at him on the workroom floor; 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. 2021004164 2 4. On dates to be specified, management stared at and taunted him;2 5. On or around October 30, 2020, a supervisor (Supervisor2) approached him in a hostile manner; 6. On January 30, 2021, he was sent a letter instructing him to report for a Pre- Disciplinary Interview on February 5, 2021; and 7. Beginning on March 12, 2021, his supervisor (Supervisor3) brings a coworker to his area every day, and they both stare at him. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that Complainant failed to establish a prima facie case of retaliation for claims (1) through (6) because the relevant management officials were not aware of Complainant’s EEO activity until after the instances of alleged discrimination. The Plant Manager denied attempting to coerce Complainant to drop his EEO complaint in September 2020, stating he did not learn of Complainant’s EEO activity until November 16, 2020. Considering Complainant’s claims, the Agency determined that Complainant established that he was a member of a protected class. However, the Agency found that Complainant did not establish that he was subjected to harassment based on his race and/or protected activity. Concerning the August 27, 2020, incident, Supervisor1 stated she motioned to Complainant to get his attention because a trailer that had arrived at 10:30 p.m. was not unloaded and was needed for the 3:00 a.m. dispatch, and the supervisor’s version of events was corroborated by a witness statement. A manager stated that, on October 17, 2020, he directed Complainant to take headphones off while driving a forklift, which is a safety issue. Although Complainant asserted that he could still hear, the Agency determined that Complainant did not establish that this was based on his race or EEO activity. Concerning October 30, 2020, Supervisor2 stated that he asked Complainant for medical documentation for his absence of more than three days. Supervisor3 stated he instructed Complainant to report for the Pre-Disciplinary Interview in February 2021 after he failed to respond to a letter of availability and did not provide medical documentation that covered all of the days he was absent. The Agency found that Complainant did not establish by preponderant evidence that some of the instances of alleged harassment occurred as alleged. Supervisor3 denied staring at Complainant or bringing coworkers to Complainant’s work area to stare at him as described in claim (7). The Agency concluded that Complainant failed to prove that the Agency subjected him to discriminatory harassment as alleged. The instant appeal followed. 2 Complainant withdrew this claim during the investigation. Report of Investigation at 82-85. 2021004164 3 As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to a hostile work environment, as well as race and reprisal discrimination. Concerning his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Concerning his allegations of a hostile work environment, we note that Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) is controlling. In addition, to ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). As noted above, the Plant Manager denied Complainant’s allegation of coercion alleged in claim 2. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Wiley G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120181972 (Nov. 27, 2019); Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Accordingly, Complainant has not established, by a preponderance of the evidence, that she was subjected to sexual harassment as alleged. Upon careful review of the Agency’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected him to discrimination as alleged. 2021004164 4 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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 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). 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, a 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. 2021004164 5 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 (S0610) 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. 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. 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 January 04, 2023 Date