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

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2022004429 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don O,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004429 Agency No. 1F-941-0091-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 25, 2022, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Maintenance at the Agency’s facility in Seattle, Washington. On July 11, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and in reprisal for prior protected EEO activity. On July 25, 2022, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: 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. 2022004429 2 On March 11, 2022, [Complainant] alleged that the Operation Manager got in [his] face used inappropriate curse words and asked [him] to bring a mop to clean up the spill.2 The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that Complainant did not allege a harm or loss with respect to a term, condition, or privilege of employment. The Agency further found that the alleged incident was not sufficiently severe or pervasive to set forth an actionable harassment claim. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing his complaint. Complainant reiterates that a management official got in his face and used offensive words. Complainant asserts that he was previously terminated when he used the words “get off your ass” at work and had to file a case with the Merit Systems Protection Board (MSPB) to get his job back. Complainant asserts that nothing happened to the white management official in this matter and sets forth that this is a “double standard.”3 ANALYSIS AND FINDINGS The Agency properly dismissed the formal complaint for failure to state a claim. Complainant has not alleged a harm or loss with respect to a term, condition, or privilege of employment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. In the instant matter, Complainant alleged that he received a call from a management official stating that he needed a custodian due to spilled soda on the floor. Complainant asserted that he told the manager that whoever spilled it, needed to clean up the spill. Complainant stated that the management official told him to get a mop and clean it. 2 In its final decision, the Agency stated that Complainant’s assertion that he was previously disciplined for telling a peer to “get off his ass” would be considered as background information. 3 On appeal, Complainant submits a copy of an MSPB decision, MSPB Docket No. SF-0752-21- 0106-I-1 (July 20, 2021). Therein, an MSPB Administrative Judge mitigated Complainant’s prior removal to a 45-day suspension. According to the MSPB decision, the Agency removed Complainant for the charge of Unacceptable Conduct based on three specifications. 2022004429 3 Complainant stated that he went to the workroom floor and told the manager that there are supposed to be no drinks on the floor. Complainant stated that the manager “stepped up” in his face and said, “I don’t give a shit, I called two times, and no one answered.” The alleged incident is not sufficiently severe or pervasive to set forth an actionable claim of harassment. Regarding the basis of reprisal, we find that the alleged incident is not reasonably likely to deter Complainant or others from engaging in protected EEO activity. To the extent that Complainant is alleging discrimination when he was previously disciplined/terminated for using inappropriate language, we find that Complainant’s prior removal is not currently before us as a separate claim (as referenced above, Complainant appealed his prior removal to the MSPB) but rather only background information. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint for the reason discussed above. 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). 2022004429 4 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. 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. 2022004429 5 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 December 22, 2022 Date