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

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2022002841 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Silas T,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002841 Agency No. 1I-258-0005-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 7, 2022, dismissing a formal complaint of 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Tractor Trailer Operator at the Agency’s Post Office in Nashville, Tennessee. On March 25, 2022, Complainant filed a formal EEO complaint claiming that the Agency subjected him to discriminatory harassment based on race, sex, and age. On April 7, 2022, the Agency issue a final decision. The Agency determined that the formal complaint was comprised of the following two claims: 1. on December 14, 15, 18, 2021, a supervisor raised her voice at Complainant in an aggressive manner; and 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. 2022002841 2 2. on dates not specified prior to December 14, 2021, a supervisor gave Complainant dirty looks, ignored him, and hung up the phone on him. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was not aggrieved, and the alleged incident was not sufficiently severe or pervasive to support an actionable harassment claim. The instant appeal followed. On appeal, Complainant identifies other alleged incidents that he had with the supervisor beyond the two claims identified by the Agency. Complainant states that the supervisor has engaged in “an ongoing and continuous pattern [of harassment]” towards him. Complainant indicates that he overheard the supervisor state on April 18, 2022, her intention to “downgrade run #105 from a level 8 to a level 7.” Complainant explains that the supervisor was talking about his assigned route. Complainant further alleges that on April 18, 2022, the supervisor caused him additional mail delays when she only notified a Black driver about a power outage and she did not inform Complainant. Additionally, Complainant alleges that on March 23, 2022, the supervisor withheld his overtime. Complainant asserts that the supervisor’s alleged actions were retaliatory as they occurred after Complainant began his pre-complaint processing regarding the instant complaint. ANALYSIS AND FINDINGS A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). The formal complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Our review of the record indicates that Complainant alleged on appeal that he was subjected to ongoing harassment involving incidents beyond the two claims identified by the Agency in its dismissal decision. We indeed acknowledge that in section 15 of the formal complaint form, Complainant indicated that the alleged discriminatory acts occurred on “12/14, 15, 18/2021.” However, Complainant, further clarifies, in statements attached to his formal complaint, that his supervisor has allegedly subjected him to unwelcome and offensive behavior “ever since [he has] been on her shift.” Specifically, Complainant states that the supervisor required him to operate a larger trailer while a Black driver was allowed to operate a smaller trailer. Additionally, on appeal, Complainant asserts that the supervisor threatened to downgrade his pay grade, denied him overtime, and caused him mail delays. 2022002841 3 Consequently, a fair reading of the formal complaint, in conjunction with the related EEO counseling report and Complainant’s statement on appeal and in the formal complaint, show that he is raising a claim of ongoing discriminatory harassment sufficient state a claim and allege an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We note that Complainant does not raise reprisal as a basis for the supervisor’s alleged actions in box 14 of his formal complaint. However, our review of the EEO Counselor’s report as well as Complainant’s statements on appeal, reflect that Complainant alleged that he was subjected to retaliatory harassment by the supervisor when (1) he sought to file a PS Form 1767 - “Report of Hazard, Unsafe Condition or Practice” and (2) he filed the instant complaint. Therefore, upon remand, the Agency should consider all allegations in pre-complaint proceeding and Complainant’s statements on appeal, as well as include Complainant’s claims of retaliatory harassment. CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims (ongoing and retaliatory harassment) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. 2022002841 4 Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2022002841 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2022002841 6 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 August 10, 2022 Date