Lambert L. Locket, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 16, 2009
0120080258 (E.E.O.C. Sep. 16, 2009)

0120080258

09-16-2009

Lambert L. Locket, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Lambert L. Locket,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120080258

Agency No. 4E-852-0054-07

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's October 1, 2007, 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. Complainant

alleged that the agency discriminated against him on the bases of race

(African American) and reprisal for prior protected EEO activity when,

on December 27, 2006, January 4, 2007, January 11, 2007, and January 12,

2007, he heard co-workers use the word "boy" as a racial slur.1

The record reveals that complainant, a Sales Service/Distribution

Associate at the Flagstaff, Arizona Post Office, maintains that he was

subjected to a hostile work environment when coworkers used the word "boy"

as a racial slur. On December 27, 2006, a coworker walked over to his

counter during the closing out process and remarked, "Oh [paused for two

seconds] boy [pause], I forgot you." On January 4, 2007, complainant and

another coworker almost collided as they were each rounding a corner.

Complainant claims that he said, "Excuse me" and the coworker said

"Oh [pause] boy, I almost bumped into you." On January 11, 2007, a

coworker asked complainant a question about company credits and after

complainant responded, she said, "Boy." On January 12, 2007, the lead

clerk was observing complainant and when complainant retrieved an Express

Mail envelope quickly, the lead clerk remarked, "Boy [pause] you found

that quick." Complainant felt the pauses emphasized the word "boy."

Complainant felt that all of these statements were racial slurs.2

Following an investigation by the agency, complainant was given the

option of having his case heard by an EEOC Administrative Judge (AJ)

or a final agency decision (FAD). When complainant did not respond,

a FAD was issued. The agency found that complainant failed to show

that he was subjected to reprisal or race discrimination. The agency

noted that three of the four coworkers involved denied that their word

choice or delivery had any racial connotation and the fourth merely

stated that he could not remember the incident but that his actions

were not discriminatory. Further, the agency indicated that each of

the alleged comments were made by a different worker, and although

complainant believed that these workers acted in concert, there was

no evidence presented that their conduct was coordinated. At most,

the agency maintained, complainant had identified a couple of isolated

incidents in which co-workers used the phrase "Oh, boy" during a moment

when he or she was startled and when the lead clerk was impressed by his

job performance. The agency noted that complainant was never addressed

or referred to as "boy" by his coworkers and in none of the incidents

was the term used in an angry, critical, or negative context. The FAD

found that the incidents did not rise to the level of harassment.

Finally, the agency explained that it had articulated legitimate,

nondiscriminatory reasons for its actions, namely that the word was used

as part of a common expression, and an expression of surprise, and not

in a negative or offensive manner. Moreover, the agency indicated that

no evidence had been introduced which suggested that complainant's race

or prior EEO activity were considered with regard to these incidents.

On appeal, complainant contends that he has been subjected to race

discrimination by agency employees in the past and feels the term "boy"

is a continuation of that discrimination. Complainant also contends

that the agency has a long history of discriminatory practices, as is

noted in their hiring and management practices.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the

Equal Employment Opportunity Commission to affirm the agency's final

decision. The Commission finds that no evidence has been presented

that complainant's race or prior EEO activity were involved in this

matter. Further, we find that, even if we assume that complainant

has established a prima facie case of discrimination, the agency has

articulated a legitimate, nondiscriminatory reason for its actions,

namely that complainant's coworkers did not use the word "boy" in a

personal or derogatory manner.

Finally, the Commission agrees that complainant failed to show that he

was subjected to a hostile work environment, in that the comments made

and the manner in which they were made were not hostile or pervasive

enough to constitute a hostile work environment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997), citing

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment

is actionable if it is sufficiently severe or pervasive to alter the

conditions of the complainant's employment). Moreover, complainant has

not shown that the alleged 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. See Humphrey v. United States Postal Service,

EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. � 1604.11.

With respect to complainant's contention that the agency has a

"long history of discriminatory practices," we find that other than

complainant's own assertions, he has produced no evidence showing

widespread disparate treatment on the part of the agency. Accordingly,

the Commission finds that the preponderance of the evidence of record

does not establish that discrimination occurred as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. In the absence of a legible postmark, the request

to reconsider shall be deemed timely filed if it is received by mail

within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29

U.S.C. �� 791, 794(c). The grant or denial of the request is within the

sole discretion of the Court. Filing a request for an attorney with the

Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 16, 2009

Date

1 Complainant originally had another claim which stated that on January

16, 2007, he received a harassing and threatening letter from a customer.

The agency dismissed this claim under the grounds that he was not

aggrieved. See 29 C.F.R. � 1614.107(a). The agency indicated that a

letter of complaint from the customer was reviewed by the Postmaster,

who found that there was no request for action by the agency, nor did

he see a need for action against complainant regarding this matter.

Accordingly, the letter had no effect on complainant's employment.

Therefore, the Commission affirms the dismissal of this issue.

2 There are several references in the file wherein complainant contends

that he has been repeatedly subjected to racially offensive language

including having a "gorilla" hung near his work area. The Commission

notes that these issues were addressed in EEOC Case No. 0120072625,

(August 17, 2007), wherein the Commission found that complainant had

failed to show that he was discriminated against and/or that based on

the evidence, the incidents were not hostile or pervasive enough to

constitute a hostile work environment.

??

??

??

??

2

0120080258

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120080258