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

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2021002391 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002391 Agency No. 1K-302-0012-20 DECISION On March 2, 2021, 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 February 9, 2021 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 Mail Processing Clerk at the Agency’s North Metro Georgia Processing & Distribution Center (P&DC) in Duluth, Georgia. On February 7, 2020, Complainant filed a formal EEO complaint alleging the Agency unlawfully retaliated against him for prior protected EEO activity when he was subjected to ongoing harassment by his supervisor (“S1”) as evidenced by: 1. on August 28, 29, 31, September 6, 25, October 1, 15, 17, and November 13, 2019, the supervisor stalked, belittled and embarrassed Complainant, including saying she could not depend on him, in the presence of his coworkers; 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. 2021002391 2 2. On October 18, 2019, Complainant was assigned to work different machines, after having worked the same machine for over two years. After an 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant provides statements from two co-workers (CW1 and CW2) regarding S1’s behavior toward Complainant, a statement from another coworker about Complainant’s aptitude at his job, text messages regarding Employee Assistance Program, and a petition with 24 signatures requesting S1’s removal and agreement regarding Complainant’s statement about S1’s unprofessional conduct. ANALYSIS AND FINDINGS To establish a claim of discriminatory 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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to establish his harassment claim, Complainant must show 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 a protected basis - in this case because of his prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The record shows that Complainant had filed a prior EEO complaint that involved S1’s nephew. He alleged that S1 held retaliatory animus towards him as a result. However, S1 denied she was aware of this activity and there is no other evidence establishing her knowledge. Complainant stated that there were ten incidents in which S1 stalked, belittled, and embarrassed him in the presence of co-workers. On appeal, Complainant presents statements from several coworkers confirming what they believed was harsh treatment of Complainant by S1. S1 stated, however, that Complainant often took long breaks and lunches. She noted that his zone was small, and that the work should have been completed hours prior to dispatch. 2021002391 3 However, she stated that Complainant “pushed back” completing the work in his zone until the end of his tour of duty. S1 further testified that, while she spoke with Complainant about the issue of frequent and extended breaks, he continued on in his usual manner. Complainant also alleged that S1 reassigned him to different machines in retaliation for his prior EEO activity. S1 testified that she continued to have problems with Complainant’s work at his original machine and stated that it was her prerogative to reassign Complainant to obtain the best workflow. S1 also testified that, after she reassigned Complainant, the mail for Complainant’s former zone moved along much better and she no longer had any problems with that zone. S1 has articulated a legitimate, nondiscriminatory reason for reassigning Complainant. Beyond his bare assertions, Complainant has failed to prove that the legitimate, non-discriminatory rationale proffered by S1 was pretext masking her true retaliatory motivation. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (March 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by unlawful retaliatory animus in any of the disputed actions. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his prior EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding that no unlawful retaliation was established. 2021002391 4 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). 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). 2021002391 5 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. 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 June 2, 2021 Date