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

Equal Employment Opportunity Commission

Feb 27, 2023

Appeal No. 2022001926 (E.E.O.C. Feb. 27, 2023)

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. 2022001926 Agency No. 4B-020-0041-21 DECISION 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 January 24, 2022 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, P-06, at the Agency’s Boston-Chelsea Carrier Annex in Chelsea, Massachusetts. On June 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), age (59), and in reprisal for prior protected EEO activity when: 1. On February 6, 2021, management threatened to give Complainant a Pre- Disciplinary Interview (PDI); 2. On February 25, 2021, Complainant was issued a Letter of Warning; 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. 2022001926 2 3. On April 22, 2021, Complainant’s supervisor stepped in front of the power jack Complainant was operating and spoke to him in a disrespectful manner; and 4. On June 17, 2021, Complainant’s supervisor directed another employee to start a conversation with Complainant to see if she could detect alcohol on Complainant’s breath. 2 Issue 1 - Threatened PDI Complainant reported that, on February 5, 2021, the Union Steward told him and a colleague to give keys to the Somerville Carriers the following day. Complainant stated that his supervisor (S1) later instructed them not to deliver the keys to the Carriers and threatened him. S1 denied threatening to give Complainant a PDI; rather, Complainant witnessed a conversation during which S1 stated that he would give the Union Steward a PDI for instructing employees to perform duties that conflicted with the Agency’s COVID-19 protocols that limited physical contact. Issue 2 - Letter of Warning S1 acknowledged that Complainant was issued a LOW for attendance issues on February 25, 2021. S1 also said upper management concurred in the issuance of the LOW. In the LOW, Agency management indicated that Complainant incurred six unscheduled absences from December 17, 2020, to February 8, 2021. S1 explained that Complainant refused to provide supporting documentation for his sick leave requests. Issue 3 - Jumped in Front of Complainant Operating the Power Jack Complainant claimed that S1 jumped in front of the power jack he was operating on the date in question. Complainant claimed that when he asked S1 why he jumped in front of him, S1 responded by asking him why he was raising his voice as it was disrespectful. Complainant denied raising his voice. Complainant believed that S1 intended to harass him because of past conflicts between them. S1 testified he did not see Complainant operating the power jack on April 22, 2021, and that he apologized to Complainant for stepping in front of him. S1 denied yelling at Complainant. Issue 4 - Directed Another Employee to Spy on Complainant S1 denied ever asking anyone to smell Complainant’s breath. When questioned, S1 responded “No, I was not involved.” Complainant offered his own statement for the record, dated June 18, 2021. In the memo, Complainant stated that he was told that, on the day before (June 17, 2021), 2 The Agency dismissed an additional claim for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2022001926 3 S1 “encouraged [a co-worker] to start a conversation with me so she can smell his breath and if it smelled like alcohol to file a report.” Complainant stated that he was writing the letter “so it’s documented that [S1] was attempting to use his colleagues to continue to harass 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove Agency management subjected him to discrimination or reprisal alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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 Chapter 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”). Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2022001926 4 Here, Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. In particular, regarding claim (1), S1 denied threatening Complainant with a PDI; rather, he was overheard saying he would give the Union Steward a PDI regarding a COVID-19 protocol issue. As to claim (2), S1 affirmed that he issued Complainant the LOW for Failure to be Regular in Attendance. S1 noted that he had counseled Complainant regarding his attendance with an official discussion and then a PDI. With respect to claim (3), S1 denied intentionally stepping in front of Complainant while operating the power jack and stated that he apologized for doing so. S1 denied following Complainant and stated that he only monitored the flow of mail. Finally, as to claim (4), flatly denied that he directed another employee to attempt to detect alcohol on Complainant’s breath. Complainant presented no corroborating evidence that this incident occurred. As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. In sum, the record evidence reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. There is no persuasive record evidence demonstrating that any management official acted with discriminatory or retaliatory animus. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION 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. 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. 2022001926 5 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). 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 2022001926 6 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 February 27, 2023 Date