[Redacted], Dennis M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 17, 2021Appeal No. 2020000886 (E.E.O.C. Feb. 17, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dennis M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000886 Agency No. 1F-921-0028-19 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 September 3, 2019, 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 finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time PS-8 Tractor Trailer Operator at the Agency’s Margaret Sellers Processing and Distribution Center (P&DC) facility in San Diego, California. His chain of command included a Supervisor of Transportation Operations (STO1), STO2, Acting STO, Manager of Distribution Operations (MDO), and Manager of Transportation Network (MTN) (who was MDO’s superior). On March 22, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Turkish), and religion (Muslim) when: 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. 2020000886 2 1. Since January 2019, he has been subjected to a hostile work environment when a coworker has made racist remarks to him and management has not addressed him appropriately; and 2. On February 28, 2019, he was issued a Notice of 14-Day Suspension for Improper Conduct. After 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). There is no indication that a hearing request was properly made. The Agency issued a decision finding no discrimination. With respect to Claim 1, the Agency noted that Complainant said that on January 4, 2019, his coworker (CW), a Motor Vehicle Operator, repeatedly said to him "all you Middle Easterners look and act the same" and "you Turkish terrorist" while standing beside STO1. The Agency noted that Complainant averred he cussed at CW and asked him to stop making the comments. Complainant said that he reported the matter to the Acting STO who took him to the MDO. The Agency further noted that the MDO stated that he reported the matter to the MTN and that the Acting STO said he encouraged Complainant to follow up on his complaint. However, the Agency observed that Complainant asserted that “someone” told him after the January 4, 2019 incident, as he was clocking in, that CW was not going to stop making comments and if CW said anything again, Complainant should not do anything or he would be walked out. The Agency also considered that Complainant said on January 22, 2019, he spat at CW when CW made offensive comments about his race and heritage again. The Agency noted that Complainant said CW never made any more remarks after February 2019, which was when Complainant and CW were suspended for improper conduct. The Agency noted that STO2, who issued the suspension notice, said that he had no knowledge of prior racial remarks by CW and only was aware of the January 22, 2019 racial remark where CW allegedly called Complainant a “Turkish turd.” STO2 said he conducted investigative interviews and learned that both Complainant and CW had engaged in unacceptable conduct and workplace harassment that included spitting at each other. Hence, he recommended that they both be suspended without pay for 14 days and MTN concurred. Regarding the January 22, 2019 incident, MTN noted that STO2 investigated and determined that both parties had engaged in harassing conduct. According to the record, during the investigative interview of the January 22 incident, Complainant stated that he was going to fuel his truck at the VMF pumps when he saw CW at the keypad and stated he was “taking looks my way." Complainant said CW took a couple of steps towards him and then called him a 'Turkish Terrorist." Complainant said he "spat" towards CW and CW spat back at him and made contact. Complainant added that they both raised their hands “about the same time" and CW took an "air swing," missed and kind of lost his balance. Complainant stated that he did not swing a punch at CW. Complainant said they cursed at each other and, "That was about it." 2020000886 3 Complainant said he informed Acting STO about the incident and Acting STO directed him to tell STO1. Complainant said that STO1 retrieved his badge, and informed him he was on emergency placement pending the investigation. During CW’s investigative interview, CW recounted he had returned to the plant and unloaded his truck. After unloading, he drove to the fuel pumps located at the VMF. CW stated that he was on the right side of the pumps and had begun fueling when he noticed Complainant lunge and spit at him. He said he didn’t recall but he may have spit back at Complainant. He said that Complainant swung his right arm at him and he ducked and was not hit. He stated he told Complainant that "You are stupid, there are cameras everywhere." CW said Complainant called him a "pussy" and he got into his truck and drove away from the fuel pumps. CW stated that he reported the incident to STO1 and asked STO1 if the Postal Inspectors could get video of the altercation since he did nothing wrong. Both parties stated that there were no witnesses to the incident and management said the cameras on the premises provided no videos of the incident. The record revealed that both Complainant and CW were immediately placed on emergency placement and leave without pay (LWOP). STO2 stated that he determined both Complainant and CW engaged in harassing conduct. Therefore, he recommended that they be suspended for 14 days. MTN concurred with STO2’s proposed corrective action.2 The Agency found that Complainant failed to establish a prima facie case of harassment. The Agency stated that Complainant failed to show that he was subjected to any vulgar, crude, or offensive language, or any inappropriate physical conduct other than allegedly being called a "Turkish turd" on one occasion. The Agency also reasoned that Complainant provided no evidence that management was motivated by discriminatory animus based on his race, religion, or national origin. Finally, the Agency stated that the incidents Complainant complained of are neither severe nor pervasive, either individually or collectively, when judged by a reasonable person's standards. Turning to Claim 2, the Agency found that Complainant failed to show that management’s reasons for suspending him were a pretext for discrimination and not because of his conduct. The Agency observed that management investigated the January 22 incident at the gas pump, and that although Complainant’s and CW’s versions of the events differed as to provocation and instigation, both admitted to spitting and striking at each other and Complainant admitted to making derogatory remarks (allegedly in reaction to racist remarks by CW, which CW denied making). The Agency observed that although Complainant argued management’s actions were discriminatory because they did nothing to CW, the Agency found this argument unpersuasive since both CW and Complainant were suspended for 14 days without pay. Complainant filed an appeal, but did not submit any arguments on appeal. 2 Both CW and Complainant successfully grieved their leave without pay status during the emergency placement. 2020000886 4 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”). Regarding Claim 1, even assuming Complainant established a prima facie case of harassment, we find that he failed to show the Agency knew or should have known of the harassment but yet failed to take prompt and appropriate corrective action. As the record reflects, once management learned about the January 22 incident which Complainant asserts involved being called a “Turkish terrorist,” he and CW spitting at each other, and them both raising their arms as if to strike at each other but no one making contact, the Agency investigated the incident and based on the parties’ admissions suspended them both without pay. Further, all parties agree that the remarks stopped after the February suspensions were issued. Also, we find that Complainant failed to show by persuasive evidence that he was subjected to a discriminatory hostile work environment by the incident on January 22, 2019. CW denies making a discriminatory remark and there were no witnesses to the incident. Furthermore, Complainant has not pointed to any other harassing, discriminatory incidents since January 2019 (claim 1). With respect to Claim 2, we find that Complainant did not establish he was subjected to disparate treatment when he was suspended following the January 22 gas pump incident. The record shows that both Complainant and CW were suspended for 14 days. There is no indication that similarly situated employees were treated better after engaging in the conduct the Agency concluded that Complainant engaged in. Although the facts of the incident are in dispute, there is no indication that the Agency’s conclusions were anything but reasonable. Furthermore, Complainant admits to engaging in some of the conduct in question. Therefore, we find that Complainant failed to show by a preponderance of the evidence that the suspension was motivated by discrimination. CONCLUSION The Commission AFFIRMS the Agency’s decision finding no discrimination as alleged. 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 2020000886 5 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. 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. 2020000886 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 February 17, 2021 Date Copy with citationCopy as parenthetical citation