[Redacted], Kermit P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021000376 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kermit P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000376 Agency No. 4F-926-0171-17 Hearing No. 480-2018-00511X DECISION On October 21, 2020, 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 October 7, 2021, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor, EAS-17, at the Irvine Main Post Office in Irvine, California. On October 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Chaldean), national origin (Iraqi), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2021000376 2 the Age Discrimination in Employment Act of 1967. Following an amendment to his complaint, the Agency accepted the following claims for investigation:2 1. On May 30, 2017, he was instructed to manually punch four clock rings a day instead of being on automatic clock rings; 2. On May 30, 2017, June 5, 2017, and other dates in 2017, he was not paid for all time worked; 3. On June 5, 2017, he was placed on administrative leave and escorted from the premises in the presence of coworkers; 4. On June 14, 2017, he learned that allegations that he had engaged in misconduct had been disclosed to an EEO investigator; 5. On June 27 and July 27, 2017, he was subjected to investigative interviews; and 6. On November 14, 2017, he received a Notice of Proposed Removal. Complainant was subsequently removed from federal service on March 9, 2018. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. During the discovery process, Complainant filed 30 requests for production of documents primarily pertaining to matters predating his EEO claims and the circumstances surrounding his removal from federal service on March 9, 2018. For example, in Request No. 1, Complainant requested copies of all documents allegedly falsified on the dates identified in the Agency’s Notice of Proposed Removal. In Request No. 4, Complainant sought all records concerning the AM Supervisor’s alarm code usage between November 1, 2017 and February 1, 2018, presumably because he believed that the AM Supervisor had previously made false time fraud allegations about him in late May 2017. ROI at 00090. Complainant made numerous other requests for production concerning matters that occurred either before or after the events alleged in claims 1 to 5 (e.g., Request Nos. 2, 3, 5, 6, 7, 8, 9, 12, 22, 29, and 30). 2 Shortly after the Agency issued the Letter of Acceptance accepting the six claims for investigation, Complainant filed a response objecting to the Agency’s framing of the complaint. In his response, Complainant asserted that the Agency improperly failed to include his claim of a hostile work environment resulting from “harassment, threats, and intimidation,” as well from the unreasonable workload that management allegedly subjected him. ROI at 00065-69. The Agency, however, refused to explicitly add these claims to the complaint. Id. at 00064. At the hearing stage, Complainant unsuccessfully attempted to reinstate these claims. Appeal File (Vol. 1) at 229. As Complainant has not specifically raised the dismissed claims on appeal, we exercise our discretion to not address them. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.”). 2021000376 3 As Complainant believed the Agency’s responses to be insufficient, he filed a motion on August 30, 2018, seeking to compel the Agency to produce the requested documents. See Complainant’s Motion to Compel Responses to Discovery and for Sanctions. On December 12, 2018, the Agency filed a separate motion to dismiss for lack of jurisdiction. See Agency’s Motion to Dismiss for Lack of Jurisdiction. In seeking to dismiss the complaint, the Agency argued that the Commission did not have jurisdiction, as the complaint concerned a mixed-case matter. As such, the Agency argued that jurisdiction rested with the Merit Systems Protection Board (MSPB). On March 1, 2019, the AJ assigned to the matter issued a ruling addressing both the Agency’s motion to dismiss and Complainant’s motion to compel. See Order (1) Granting in Part and Denying in Part Agency’s Motion to Dismiss and (2) Granting in Part and Denying in Part Complainant’s Motion to Compel. With regard to the Agency’s motion to dismiss, the AJ agreed with the Agency that the Commission lacked jurisdiction to adjudicate claim 6, concerning the proposal to remove Complainant from federal service, as that claim merged with the effectuated removal action which was before the MSPB. Id. Consequently, the AJ did not consider claim 6. The AJ determined, however, that the Commission had jurisdiction to adjudicate claims 1 to 5. Id. As for Complainant’s motion to compel, the AJ granted that motion in part and ordered the Agency to produce the requested documents to the extent that the documents had not already been produced or filed with the MSPB. Id. The AJ gave the Agency until April 3, 2019, to respond to Complainant’s request for production of documents. Id. Three days after the deadline passed, the Agency filed its response to Complainant’s discovery, wherein the Agency largely objected to Complainant’s discovery requests on the grounds that his requests were related to his MSPB case. The Agency ultimately provided Complainant with an additional 43 pages of additional records, which the Agency found to be responsive to Complainant’s requests. See Agency’s Ordered Responses to Complainant’s Written Discovery. On April 10, 2019, Complainant filed another motion to compel, seeking the production of the requested documents and the imposition of sanction for the Agency’s alleged failure to comply with the AJ’s orders. See Complainant’s Motion to Compel Responses to Discovery and for Sanctions for Agency’s Ignoring of Order Compelling Discovery. The Agency subsequently filed a motion for a decision without a hearing on April 18, 2019, arguing that it had legitimate, nondiscriminatory reasons for taking the alleged actions. The Agency maintained that Complainant failed to persuasively show that the Agency’s articulated reasons were pretext for discrimination. Though Complainant timely opposed the Agency’s motion primarily on the grounds that discovery was still ongoing, the AJ ultimately did not address Complainant’s April 10, 2019, motion to compel and issued a decision without a hearing in favor of the Agency on September 7, 2020. 2021000376 4 With regard to claim 1, the AJ found that the Postmaster directed Complainant to manually clock in his time because Complainant’s coworkers and “Agency timekeeping records indicated that Complainant was claiming and getting paid for more time than he had actually worked.” See AJ’s Decision at 13-14. In finding that the Agency had legitimate, nondiscriminatory reasons for forcing Complainant to manually clock in his time, the AJ took judicial notice of an initial decision by the MSPB Administrative Judge (MSPB AJ) who found that the Agency had established by a preponderance of the evidence that Complainant had falsified his timesheets. Id. For claim 2, the AJ determined that Complainant failed to identify any similar situated employee “whose request to work through his or her lunch break had been approved by [the Postmaster] and who had been paid for the time work[ed].” See AJ’s Decision at 14-15. Regarding claim 3, the AJ found that Complainant failed to show that he was treated less favorably than similarly situated employees. However, even assuming arguendo that he could make such a showing, the AJ held that the Agency had legitimate, nondiscriminatory reasons for placing him on administrative leave based on reports that Complainant had engaged in misconduct (i.e., falsifying his timesheets). See AJ’s Decision at 15. With regard to claim 4, the AJ stated that Complainant failed to establish a prima facie case of discrimination, as he could not “identify evidence of any supervisor who was supervised by the [Postmaster] and who had been placed on administrative leave and who had received more favorable treatment.” See AJ’s Decision at 15. The AJ concluded that even if Complainant could make such a showing, Complainant failed to show that the Postmaster’s actions were based on his protected characteristics. Id. Finally, for claim 5, the AJ found that the Agency had legitimate, nondiscriminatory reasons for referring Complainant for investigative interviews, as the Postmaster had received information that Complainant had falsified timekeeping records. In so finding, the AJ emphasized that the Postmaster’s “suspicion was confirmed by the evidence and was upheld by the Merit Systems Protection Board following a hearing.” See AJ’s Decision at 15-16. The Agency subsequently issued a final order, fully implementing the AJ’s finding of no discrimination. The instant appeal followed. CONTENTIONS ON APPEAL Through his attorney, Complainant maintains that the AJ’s issuance of a decision without a hearing was improper because the AJ granted the Agency’s motion prematurely “and in violation of [his] discovery rights.” In this regard, Complainant asserts that in both his April 10, 2019, motion to compel and his opposition to the Agency’s motion for a decision without a hearing, he raised concerns about the Agency’s failure to comply with the AJ’s March 1, 2019, order compelling the Agency to produce certain documents. He maintains that the AJ’s decision made “no reference to any of this.” 2021000376 5 Complainant contends that “[h]ad the Agency provided complete and adequate discovery responses, [he] would have had additional evidence to demonstrate material facts in dispute.” Complainant further contends that the AJ erred in taking judicial notice of the MSPB AJ’s finding that he had falsified Agency timekeeping records. Specifically, Complainant asserts that the AJ, in relying on the MSPB AJ’s initial decision, improperly “applied as res judicata that which was not res judicata.” In support of such contention, Complainant points out that the legal doctrine of res judicata only applies to final decisions, not initial decisions. Complainant maintains that the MSPB AJ’s initial decision did not constitute the final decision of the MSPB, as his petition for review with the full MSPB is still pending. Thus, he argues that the AJ’s factual findings regarding claims 3, 4, and 5 lack support. Finally, Complainant argues that the AJ ignored evidence showing “different treatment of Complainant than treatment of similarly situated employees of different races and national origin than Complainant.” As evidence of the disparate treatment, Complainant points out that the Postmaster frequently spoke to him in Spanish, even though he repeatedly told the Postmaster that he could not understand Spanish. Complainant contends that the Postmaster, in failing to address him in the language that he spoke and preferred, treated him less favorably than other similarly employees. For these reasons, Complainant requests that the Commission overturn the decision. The Agency opposes the appeal and requests that the Commission affirm its final order adopting the AJ’s decision. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2021000376 6 ANALYSIS AND FINDINGS We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. While we certainly understand Complainant’s concerns regarding the discovery process, we are nevertheless disinclined to agree with him. As discussed above, during the discovery process, Complainant filed 30 requests to produce documents. Our review of the record shows that many of Complainant’s requests were not relevant to the claims currently at hand. For example, in Request No. 1, Complainant sought all documents related to the proposed removal. See Complainant’s “Brief in Support” at 16, containing Agency’s Ordered Responses to Complainant’s Written Discovery. However, we note that this claim was not properly before the Commission, as it had merged with the effectuated removal. In Request No. 4, Complainant sought records related to the AM Supervisor’s alarm code usage between November 1, 2017 and February 1, 2018. Id. at 20-21. Having reviewed this request, we fail to see how it is related to claims 1 to 5, as these claims all occurred before November 2017. We further note that many of Complainant other requests concerned matters that occurred either before or after the events alleged in claims 1 to 5 (e.g., Request Nos. 2, 3, 5, 6, 7, 8, 9, 12, 22, 29, and 30). Id. at 16-35. As such matters are not relevant to the claims currently at hand, we do not find the Agency’s failure to produce the requested records to be problematic. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. In reviewing the AJ’s decision to grant the Agency’s motion, we must draw all justifiable inferences in Complainant’s favor. As discussed below, we find that AJ correctly determined that there were no genuine issues of material fact or credibility to merit a hearing. 2021000376 7 Disparate Treatment Claims For Complainant to prevail on claims 1, 2, 3, and 5, concerning his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions. With regard to claim 1, concerning the Postmaster’s directive to Complainant to manually punch four clock rings a day instead of being on automatic clock rings, the Postmaster explained that he issued that directive because “Complainant was not showing up to work on time and this led to his instruction for Complainant to clock in and take lunch breaks instead of being on automatic clock rings.” ROI at 00085. The Postmaster added that Complainant also notified him on one occasion that he did not take his lunch break. Id. The Postmaster stated that he responded to Complainant by instructing Complainant to take a lunch break. Id. The Postmaster vehemently maintained that Complainant’s protected characteristics played no role in the underlying actions. Id. For claim 2, concerning Complainant not being paid for working through his lunch break, the Postmaster stated that he did not recall whether Complainant took a lunch break on the dates at issue. However, the Postmaster maintained that if Complainant did not take a lunch break, it was without permission. ROI at 00088-89 and 00245. As for claim 3, regarding Complainant being placed on administrative leave and escorted from the premises in the presence of coworkers, the Postmaster explained that he put Complainant on administrative leave on June 5, 2017, “for paying himself for time he was not there.” ROI at 00091. The Postmaster emphasized that he did not put Complainant on administrative leave on the workroom floor and denied violating Complainant’s privacy. ROI at 00093. One of Complainant’s employees recalled that while he was chatting with Complainant, the Postmaster came up to them and asked Complainant to follow him. Id. at 00324. He stated that he only learned the following day that the Postmaster had “walked [Complainant] out of the office.” Id. 2021000376 8 With regard to claim 5, concerning Complainant being subjected to investigative interviews, the Postmaster maintained that he investigated Complainant because he was concerned that Complainant may have fraudulently altered his clock ring records, closing alarm codes, and 1260 forms. The Postmaster denied taking the alleged actions because of Complainant’s protected characteristics. ROI at 00095-96. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext for claim 1, Complainant recalled that on May 9, 2017, approximately eight days after the Postmaster assumed command, he met with the Postmaster to fix preexisting issues with his auto clock rings. ROI at 359-61. Complainant stated that the Postmaster told him that the District was having issues with its Time and Attendance Collection System (TACS), and that he would fix the problem so that Complainant could be back on auto clock rings. Id. Complainant emphasized, however, that the Postmaster took no action. Complainant added that at the end of the month, on May 30, 2017, the Postmaster summoned him to his office and accused him of getting paid for time not worked and threatened to walk him out like he had done to another supervisor earlier that day. Id. Complainant attributed the error in timekeeping to the TACS, which he believed “was programmed to charge him a one-hour lunch even if he did not take it or if he did not clock out for lunch.” Id. With regard to claim 2, Complainant maintained that he regularly did not take a lunch break and was not paid for working through lunch. ROI at 00086-89. He recalled that during his investigative interview, he was shown TACS printouts indicating that had taken lunch daily, even though he had submitted PS-1260 “missed clock rings” forms marked, “No Lunch.” Id. Complainant maintained that the Agency regularly prevented supervisors from exceeding 10 hours of work a day and even sent out “shaming reports” showing which offices had incurred over 10 hours for each supervisor. Id. He added that the Postmaster treated him in a disparate manner by “barking orders” to him in Spanish on two occasions. Id. at 00087. Concerning claim 3, Complainant asserted that he believed that he was put on administrative leave because the AM Supervisor made false time fraud allegations about him in late May 2017, after he denied her request “to put her in for extra time, to bring her up to 10 hours per day/50 weekly total.” ROI at 00090. Complainant maintained that he made the Postmaster aware about the false allegations, but the Postmaster did nothing to address the threats. 2021000376 9 Complainant asserted that on June 5, 2017 around 5:00 p.m., the Postmaster came up to him and stated, “I am walking you out, give me your ID and keys.” Id. Finally, with regard to claim 5, Complainant maintained that on June 27 and July 27, 2017, he was subjected to investigative interviews conducted by both the Postmaster and the Office of Inspector General who were investigating whether Complainant committed time fraud. Complainant maintained that during these interviews, he asked to see his PS-1260 forms, which he claimed would have showed that he did not take lunch; however, management claimed that they were unable to find the forms. Complainant vehemently denied committing time fraud. ROI at 00094-96. As discussed above, on appeal, Complainant argues that the AJ ignored evidence showing “different treatment of Complainant than treatment of similarly situated employees of different races and national origin than Complainant.” As evidence of the disparate treatment, Complainant points out that the Postmaster “frequently spoke” to him in Spanish, even though he repeatedly the Postmaster that he could not understand Spanish. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are unpersuaded by Complainant’s evidence of pretext. In reaching this conclusion, we considered Complainant’s contention that the AJ improperly relied, in part, on the MSPB AJ’s initial decision. The doctrine of res judicata provides that a final judgment on the merits of a complaint bars further claims by the same parties based on the same complaint or cause of action and issues relevant to that complaint, treating the judgment as the full measure of relief to be accorded between the same parties. Magallanes v. Dep’t of Justice, EEOC Request No. 05900176 (July 13, 1990). As Complainant had timely filed a petition for review with the full MSPB, we find that the EEOC AJ should not have treated the MSPB AJ’s finding of time fraud to be a final judgment on the merits of that issue. Nevertheless, we find the AJ’s error to be harmless, as the record contains ample evidence showing that no discrimination occurred. With regard to claim 1, concerning the Postmaster’s directive to Complainant to manually punch four clock rings a day instead of being on automatic clock rings, our review of the record shows that Complainant’s issues with auto clock rings in TACS preexisted the Postmaster’s arrival. By Complainant’s own admission, when he informed the Postmaster of the problem, the Postmaster advised Complainant that the problem was District-wide and promised to address it. Later that month, Complainant angered the AM Supervisor by allegedly refusing to acquiesce to her demands to be put on 10-hour auto clock rings. 2021000376 10 Complainant believed that his failure to acquiesce to the AM Supervisor’s demands resulted in the AM Supervisor making false allegations of time fraud against him, which, in turn, caused the Postmaster to order Complainant to manually clock in four times a day. Ultimately, Complainant was put on administrative leave and subjected to investigative interviews (claims 2, 3, and 5) as a result of the false accusations. Having reviewed the record, we find that probative evidence, as expressed in Complainant’s own words, suggests that the Agency’s actions, were not the result of Complainant’s protected characteristics, but rather his personal feud with the AM Supervisor. We also considered Complainant’s contention that the Postmaster treated him in a disparate and less favorable manner by frequently speaking to him in Spanish, a language that he does not understand. As discussed above, however, we note that during the EEO investigation, Complainant claimed that the Postmaster “barked orders in Spanish to him” on two occasions. ROI at 00087. While we certainly understand Complainant’s concerns, we are disinclined to find such allegations, without more, to be evidence of disparate treatment. Given the facts in this case, we conclude that Complainant cannot prevail on his claims of disparate treatment.3 Hostile Work Environment Claim As an initial matter, we find that a finding of harassment is precluded on claims 1, 2, 3, and 5, due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). We turn now to claim 4, concerning Complainant’s allegation that management subjected him to a hostile work environment when they allegedly informed the EEO investigator that he had engaged in misconduct. Specifically, Complainant alleged during the EEO investigation that on June 14, 2017, the EEO investigator told him that he was not contacting Complainant “about the issues [that Complainant] was in trouble for.” ROI at 00143. Complainant surmised that the Postmaster was the one who revealed that information. To establish a claim of harassment on claim 4, 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 class; (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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). 3 Our decision is not based on and is independent of the MSPB AJ’s finding. 2021000376 11 To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See also Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). With regard to Complainant’s allegation that he was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, we find that he has not shown that the conduct occurred because of his protected classes. Having reviewed the record, we are inclined to find that the EEO investigator was entitled to know Complainant’s disciplinary history, as Complainant had alleged that the Agency subjected him to discriminatory when it proposed his removal for time fraud. Accordingly, we conclude that Complainant cannot prevail on his hostile work environment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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). 2021000376 12 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. 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. 2021000376 13 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 November 22, 2021 Date