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.
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0120080258
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080258