[Redacted], Julius P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 5, 2021Appeal No. 2020001375 (E.E.O.C. Aug. 5, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julius P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001375 Agency No. 1K-281-0041-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 8, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Manager, Distribution Operations, EAS-25, at the Agency’s Processing & Distribution Center in Charlotte, North Carolina. On July 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Hispanic), disability (degenerative knees and diabetes), and in reprisal for prior protected EEO activity 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. 2020001375 2 On May 30, 2019, his Manager (Plant Manager, PCES, African-American) stated, “you are acting like these kids by filing EEO and OWCP [Office of Workers’ Compensation Programs] claims.” At 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. Manager admitted to saying Complainant was “reacting like the craft (kids) [by] not giving [me] any time to find out any information on what his [OWCP] case was all about.” (parenthesis original). However, Manager denies that she was aware of Complainant’s prior EEO activity and that the comment was in reference to such activity. A coworker (Administrative Assistant, E-15) witnessed the conversation between Complainant and Manager. Coworker stated that she “did hear [Manager] say that he [Complainant] is acting like a kid and her tone was demeaning. I also do believe that the EEO and OWCP claims had something to do with the conversation but I am not absolutely sure.” Coworker added that “I don’t remember the context of [the incident], just that she said that he is acting like a kid.” 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”). As a general matter, the Commission has held that the actions of a supervisor may constitute per se reprisal when the supervisor intimidates an employee and interferes with the employee’s EEO activity in any manner. See Israel F. v. U.S. Postal Serv., EEOC Appeal No. 0120181863 (Sept. 26, 2019) (citing Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law. Id. Central to a finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on the complainant or a reasonable employee from engaging in, or pursuing, protected activity. Id. (citing Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018)). 2020001375 3 Here, we find that Complainant failed to demonstrate that Manager’s comment happened as Complainant alleged. The record does not persuasively support Complainant’s assertion that Manager’s comment referred to his prior EEO complaint. Therefore, the comment does not constitute per se retaliation. Complainant claims that Manager said he was acting “like these kids by filing EEO and OWCP claims.” Manager, however, admits that she said Complainant was acting “like the craft (kids),” but denies that she mentioned his EEO activity. Coworker’s affidavit supports Manager’s contention that she did not refer to Complainant’s EEO activity. Coworker stated that she specifically heard Manager say to Complainant that he was “acting like a kid,” but would not state that she heard Manager reference Complainant’s EEO and OWCP claims. While coworker stated that she believed Complainant’s claims “had something to do with the conversation,” she admits that “I don’t remember the context of it[,] just that she [Manager] said that he is acting like a kid.” Manager making a comment that Complainant was “acting like a kid,” without explicit reference to his EEO activity, does not constitute per se reprisal. Complainant did not show by a preponderance of the evidence that Manager’s behavior had or reasonably could have had a potentially chilling effect on the use of the EEO complaint process. Even if considered as retaliatory harassment or disparate treatment (separate from our a per se analysis), we find no indication that the comment at issue was motivated by retaliation. In light of our conclusion that Manager’s comment does not constitute per se retaliation, we now address the question of whether the comment rises to the level of discrimination based on the other bases Complainant alleges, namely race and disability. This is not a discrete action, so we analyze Complainant’s claim under a hostile work environment framework. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Here, we find that the single isolated comment saying that Complainant was “acting like a kid,” especially absent any reference to his EEO activity, was not sufficiently severe or pervasive to constitute harassment based on Complainant’s race or disability. CONCLUSION Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020001375 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). 2020001375 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 August 5, 2021 Date Copy with citationCopy as parenthetical citation