[Redacted], Kathey Z., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020000922 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lemuel M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Request No. 2020002951 Appeal No. 2019003630 Agency Nos. 4B-020-0037-16 & 4B-020-0032-17 Hearing Nos. 520-2017-00419X & 520-2018-00250X DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019003630 (January 22, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the relevant time, Complainant worked as a Letter Carrier at the Post Office in Roxbury, Massachusetts. Believing that he was subjected to unlawful discrimination based on his race (African-American), sex (male), and in reprisal for prior protected EEO activity, Complainant filed an EEO complaint on July 20, 2016. 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. 2020002951 2 The Agency framed the claims as follows: (1) Beginning in November 2014 and continuing, Complainant’s supervisor harassed him, assigned him extra work, and said she would file a sexual harassment claim against him; (2) On May 31, 2016, Complainant was watched and followed on his route for two hours; (3) On March 17, 2016, Complainant was sent home before completing his regular work schedule; and, (4) On or around August 31, 2016, Complainant was issued a Letter of Warning (LOW). Thereafter, on July 6, 2017, Complainant filed a formal complaint based on race and reprisal. Specifically, Complainant alleged that: (1) On March 23, 2017, his Postmaster called him a “boy”; (2) On May 1, 2017, Complainant was issued a LOW for unacceptable conduct; and, (3) On June 7, 2017, Complainant was threatened and bullied on the work room floor. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the AJ granted the Agency’s motion for a decision without a hearing. On April 10, 2019, the AJ issued a decision finding no discrimination. Regarding the July 2016 formal complaint, the AJ reasoned that Complainant failed to present any evidence that the Agency’s actions were motivated by his race, sex, or prior EEO activity. In particular, the AJ concluded that Complainant failed to establish a prima facie case of race or sex discrimination as there was no evidence of true comparators outside of his protected basis. Instead, the two individuals cited by Complainant, as treated more favorably, were also male and one was the same race. When Complainant did not address this weakness, the AJ accepted the “non- response as his concession that no relevant comparators exist.” As for the basis of reprisal, the AJ found not causal connection between Complainant’s earlier EEO activity, in 2011 and 2012, and the alleged incidents. Further, the AJ found that the events did not rise to the level of a hostile work environment, but instead reflected “ordinary management actions taken to direct employees in the performance of their duties and to ensure the efficiency of operations.” The AJ also determined that the alleged actions in the July 2017 formal complaint were not based on Complainant race or retaliatory. 2020002951 3 When the manager said: “Have a nice day, boys” it was directed to a group of stewards that included a Caucasian employee. The issuance of the LOW and June 7, 2017 incident were in response to “Complainant’s own unacceptable workplace conduct, including the use of profanity and interrupting and laughing at his supervisor.” Finally, the AJ viewed the incidents as episodic and not sufficiently severe or pervasive to create a hostile work environment. The Agency issued a decision adopting the AJ’s finding of no discrimination. Complainant appealed the decision to the Commission, but did not present any contentions or arguments in support. In Complainant v. United States Postal Svc., EEOC Appeal No. 2019003630 (Jan. 22, 2020), we found that the AJ’s decision granting the Agency’s motion for summary judgment was proper as there was no genuine dispute of material fact. Further, the Commission affirmed the finding of no discrimination. Complainant filed the instant request for reconsideration. To merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). Here, Complainant has not presented any arguments in her request. Therefore, after reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to the request. The decision in EEOC Appeal No. 2019003630 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 2020002951 4 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 September 17, 2020 Date