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

Equal Employment Opportunity Commission

Sep 26, 2022

Appeal No. 2022003808 (E.E.O.C. Sep. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erick K,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003808 Agency No. 4B-020-0033-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 2, 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 Clerk at the Agency’s Post Office in Chelsea, Massachusetts. On May 13, 2022, Complainant filed a formal complaint claiming that the Agency subjected him to discriminatory harassment based on race, color, and in reprisal for prior protected EEO activity when: 1. on January 2, 2022, Complainant was denied union representation; 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. 2022003808 2 2. on February 26, 2021, Complainant was given an investigative interview;2 3. on April 22, 2021, management stepped in front of a power jack Complainant was operating and spoke to Complainant disrespectfully; 4. on June 17, 2021, management asked an employee to talk to Complainant to see if they smelled alcohol; and 5. on January 4, 2022, Complainant was made to work on a machine by himself. In its June 2, 2022 final decision, the Agency dismissed the formal complaint on two procedural grounds. First, the Agency dismissed claims 1 - 4, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the same claims were raised in a prior EEO complaint in Agency Case No. 4B-020- 0041-21. The Agency dismissed claim 5, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claims - (Claims 1 - 4) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed claims 1 through 4 for raising the same matters that were raised in a prior complaint (Agency Case No. 4B-020-0041-21). The record reflect that these claims were adjudicated in the Agency’s final decision, dated January 24, 2022. In the January 24, 2022 decision, Complainant alleged, among other claims, that he that he was subjected to discriminatory harassment when he received a pre-disciplinary interview, management stepped in front to a power jack and spoke to him disrespectfully, and when management directed an employee to speak with him to see if alcohol could be detected on his breath. The January 24, 2022 decision also notes that Complainant’s complaint included an additional claim (denial of union representation) which the Agency dismissed on July 22, 2021 on procedural grounds. Our records further indicate that Complainant appealed the Agency’s January 24, 2022 decision which is currently pending before the Commission and is identified as EEOC Appeal No. 2022001926. Therefore, we affirm the Agency’s dismissal of claims 1 - 4 in the instant complaint as they are identical to the matters raised in the prior complaint. 2 A review of box 15 in the formal complaint indicates that this alleged claim occurred on February 6, 2021 and not on February 26, 2021 as stated in the Agency’s final decision. 2022003808 3 Failure to State a Claim (Claim 5) The regulation at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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, 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). Here, there is nothing in the record supporting a claim that Complainant was adversely affected by the alleged incident at issue. Here, Complainant does not allege that he was harmed by being assigned to work the machine alone. Although Complainant might not have wanted to work the machine by himself, there is no indication that this work assignment adversely impacted his employment status. Thus, there is no indication that Complainant suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Moreover, even taking the fact as alleged as true, we do not find that this incident is sufficiently severe or pervasive to set forth an actionable claim of harassment. We note that Complainant’s claim that a supervisor assigned him to work the machine solo occurred on one occasion. An isolated incident of alleged harassment usually is not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Additionally, the alleged incident is of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc,. 523 U.S. 75, 81 (1998). Finally, the alleged agency actions were not of a type reasonably likely to deter complainant or others from engaging in protected activity. Therefore, Complainant’s complaint of harassment fails to state a claim upon which relief can be granted pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. 2022003808 4 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. 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). 2022003808 5 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 September 26, 2022 Date