Carroll G.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 14, 2020

2020002612 (E.E.O.C. Oct. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carroll G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020002612 Agency No. 1J-607-0072-19 DECISION On February 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 28, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Group Leader Custodial at the Agency’s Cardiss Collins Processing and Distribution Center (P&DC) in Chicago, Illinois. On September 20, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American) and sex (male) when, on June 10, 2019, a co-worker hit him in the face with a newspaper, and subsequently, he was placed on Emergency Placement. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. 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. 2020002612 2 In its January 28, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of discriminatory hostile environment harassment, 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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove his harassment claim, Complainant must establish that he 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 bases - in this case, his race and sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as discussed below, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race and sex. Complainant asserted that on June 10, 2019, a co-worker (also an African American male) hit him in the face with a newspaper, and subsequently, Complainant was put on an Emergency Placement. Complainant alleged he was taking trash down on the elevator and when the doors opened a co- worker was waiting to enter the elevator. Complainant asserted that the co-worker entered the elevator and did not say anything to him. Complainant claimed that when the elevator got to the second floor, as the co-worker was leaving the elevator, he suddenly flicked the newspaper up and it slapped Complainant in the face. The coworker denied this incident occurred. It is undisputed that there were no other witnesses to this incident. Complainant’s supervisor (African-American, female) stated that that on June 17, 2019, she signed the Emergency Placement putting Complainant in a non-pay, non-duty status from June 10, 2019 to June 21, 2019. The Supervisor said she did so due to the June 10 incident and because this was the second altercation between Complainant and the co-worker. Specifically, the supervisor stated that on April 9, 2019, Complainant and the co-worker had a verbal altercation, and that the acting supervisor had to intercede when Complainant lunged at the co-worker. Complainant had been instructed to stay away from the coworker. Complainant’s manager (African American, male) concurred with the emergency placement. Complainant alleged that white employees were treated more favorably, citing to an instance where two white coworkers were involved in a verbal altercation, but neither were put off work. 2020002612 3 However, Complainant’s supervisor denied knowing anything about the altercation referenced by Complainant. There is no other evidence in the record about this other altercation. In sum, Complainant either failed to prove the event supporting his harassment claim occurred as alleged or, if the matter occurred, that discriminatory animus played any role in management’s actions. His claim of harassment is precluded based on our findings that Complainant failed to establish that the action taken by management was motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2 On appeal, Complainant does not challenge the October 2, 2019 partial dismissal issued by the agency regarding one other claim. Therefore, we have not addressed this issue in our decision. 2020002612 4 In the absence of a legible postmark, 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. 2020002612 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 October 14, 2020 Date