[Redacted], Noah W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 28, 2021

Appeal No. 2020003610 (E.E.O.C. Sep. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Noah W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003610 Hearing No. 40-2020-00040X Agency No. 4J-604-0076-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 26, 2020, 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. ISSUES PRESENTED The issues are whether Complainant’s appeal should be dismissed; whether the Administrative Judge abused her discretion when she dismissed Complainant’s hearing request; and whether Complainant established that the Agency subjected him to discriminatory harassment based on his race. 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. 2020003610 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Joliet, Illinois Main Post Office. Complainant (African-American) stated that on February 11, 2019, his first-line supervisor (S1) (African-American) asked what he was still doing in the building, and when he replied that he had just returned, S1 responded, “[N-word] please!” Complainant stated that he asked S1 why she said that, but she walked away without replying. Report of Investigation (ROI) at 78. Complainant stated that on February 15, and 16, 2019, S1 informed him that he needed to be on the street, but he had not yet received the mail. Complainant stated that S1 told him that she would have someone else do Complainant’s route. According to Complainant, when he asked S1 to stop harassing him, S1 replied that she would not stop harassing him until he found another job. ROI at 80-1, 83. On May 29, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the basis of race (African-American) when: 1. on February 11, 2019, S1 called Complainant a racially derogatory word; and 2. on February 15 and 16, 2019, S1 told Complainant that she would keep harassing him until he found another job. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On February 13, 2020, the AJ dismissed Complainant’s hearing request as a sanction. The AJ stated that on January 13, 2020, she ordered the parties to submit a Preliminary Case Information (PCI) within 15 days and informed them that failure to do so could lead to sanctions, such as a dismissal of the hearing request. The AJ noted that Complainant failed to timely submit his PCI and she issued an Order to Show Cause on February 3, 2020, ordering Complainant to explain why he should not be sanctioned for his failure to comply with her previous order. The AJ stated that Complainant replied that he had technical issues and described his efforts to correct the issues. However, Complainant did not mention his PCI nor submit his PCI with his response. According to the AJ, Complainant subsequently filed his PCI on February 11, 2020, but did not offer an explanation for his untimely submission. The AJ determined that a proper sanction was a dismissal of Complainant’s hearing request, and she remanded the complaint back to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). On February 26, 2020, the Agency issued a final decision. The Agency found that, while Complainant is a member of a protected group, he did not establish that incident 1 occurred as alleged. The Agency noted that S1 disputed using the n-word and that Complainant’s witnesses did not provide sworn affidavits on the matter. 2020003610 3 Although incident 2 was found to have occurred as alleged, the Agency noted that Complainant himself stated that he did not believe race was a factor. The Agency also determined that the incidents were neither severe nor pervasive, either individually or collectively, when judged by a reasonable person’s standard. Rather, the events were normal daily interactions between a supervisor and her employee. The Agency concluded that Complainant failed to prove that he was subjected to harassment as alleged. Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Through his attorney, Complainant argues that the AJ’s sanction, to dismiss his hearing request, was extreme and an abuse of her discretion. Complainant states that upon receipt of the AJ’s Order to Show Cause, he contacted the Commission to obtain technical assistance with his issues accessing documents in the portal. Further, he contends he emailed the AJ to inform her of his issues. Complainant states that he submitted his PCI prior to his deadline to respond to the AJ’s Order to Show Cause, and he requested that the AJ not issue a sanction. Complainant acknowledges he submitted his PCI fourteen days after the original PCI deadline. Complainant asserts that the AJ could have imposed less severe sanctions, and because he did not have an attorney at the time, the AJ should have considered “letting him off with a warning” or another lesser sanction. Regarding the Agency’s final decision, Complainant argues that the Agency found no discrimination, in part, because it did not accept the evidence that S1 referred to Complainant as the n-word. Complainant states that he provided four signed witness statements corroborating her use of the term. Further, Complainant contends that management believed his allegation because they issued S1 a Letter of Warning (LOW) and sent her to sensitivity training. A supervisor’s use of the n-word or statement that she will not stop harassing an employee, asserts Complainant, are not routine or normal workplace interactions. Complainant requests that the Commission remand his complaint for a hearing, or in the alternative, find that he was subjected to harassment and remand the complaint for damages. As an initial matter, the Agency requests that the Commission dismiss Complainant’s appeal as untimely, and because he failed to serve the Agency. The Agency states that it first received notice of Complainant’s appeal on April 27, 2020, which was two months after Complainant received the final decision. Regarding the AJ’s sanction, the Agency argues that the AJ did not err when she dismissed Complainant’s hearing request. The Agency notes that Complainant does not dispute that his PCI was untimely, nor has he submitted any evidence of efforts to submit his PCI by the January 28, 2020 deadline. The Agency asserts that its final decision correctly determined that Complainant was not subjected to discriminatory harassment and requests that the Commission affirm the final decision, if it does not dismiss Complainant’s appeal. 2020003610 4 STANDARD OF REVIEW 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 Chap. 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”). ANALYSIS AND FINDINGS Dismissal of Appeal The Agency requests that the Commission dismiss Complainant’s appeal because he did not serve the Agency and his appeal is untimely. Appeals to the Commission must be filed within 30 days of receipt of a final decision, with a copy served to the opposing party. 29 C.F.R. §§ 1614.402, 1612.403(b). Here, Complainant noted in his appeal form that he sent a copy to the Agency via certified mail on March 27, 2020. We find that Complainant’s appeal was timely sent to the Commission, and it is not clear why the Agency did not receive a copy of Complainant’s appeal. As such, we decline to dismiss Complainant’s appeal. Dismissal of Hearing Request We note that under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dep’t of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). On appeal, Complainant argues that the AJ abused her discretion when she dismissed Complainant’s hearing request. However, we find that the AJ did not abuse her discretion based on Complainant’s response to the AJ’s Order to Show Cause and his untimely PCI, which Complainant admits was 14 days late. The Commission has consistently held that dismissal of a hearing request as a sanction is appropriate in certain circumstances. One such circumstance is when the complainant engages in contumacious conduct, not merely negligence. See Cassey B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020) Request No. 2021000172 (June 9, 2021); Cecile T. v. Dep’t of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020); Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (Mar. 10, 2020). Absent a showing of contumacious conduct, hearing requests may also be dismissed where the complainant fails to pursue his or her claim with due diligence. See Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020) (failure to respond to emails from AJ that included initial conference order and order to show cause due to overlooking those emails); request for recon. 2020003610 5 denied, EEOC Request No. 2021001235 (Mar. 15, 2021); Robert A. v. U.S. Postal Serv., EEOC Appeal No. 0120182698 (Feb. 21, 2020) (failure to respond to order to show cause despite having received order from AJ via email, and failure to provide evidence that he was incapacitated and unable to comply with the order); request for recon. denied, EEOC Request No. 2020003509 (Nov. 5, 2020). In other words, there must be a showing that Complainant either willfully disobeyed the AJ’s orders or unreasonably failed to respond to those orders in order to justify dismissal of the hearing request as a sanction. In this case, Complainant informed the AJ that he registered for the Commission’s portal on January 16, 2020, and he contacted the Commission regarding his technical issues on February 5, 2020. However, Complainant’s PCI was due on January 28, 2020. He did not provide any justification for his failure to timely submit his PCI or an explanation of his efforts to do so. We note that, even if Complainant had issues accessing the Commission’s portal, the AJ gave the parties the option to submit their PCIs by email or first-class mail. In addition, there is no evidence that Complainant lacked any relevant documents because the Agency sent him a copy of the ROI. While Complainant asserts that he did not have an attorney and should have only been issued a warning, the Commission’s regulations state that a complainant is responsible for proceeding with the complaint whether or not he has designated a representative. 29 C.F.R. § 1614.605(e). Complainant has provided no reasonable explanation for the untimely filing of his PCI. Based on the specific facts of this case, we find that the AJ did not abuse her discretion in dismissing Complainant’s hearing request following his inability to show good cause for his noncompliance with her previous order. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to a statutorily protected class due to his race. However, the remaining elements have not been established. The instant record does not contain supportive evidence that incident 1 occurred as described by Complainant. S1 denied using the n-word. ROI at 107. While Complainant stated that he provided four signed witness statements confirming that S1 used the n-word, we note that these statements were unsworn. 2020003610 6 Moreover, when the EEO Investigator sent affidavits to these witnesses, none returned a sworn signed statement to confirm that they heard S1 use the n-word. ROI at 88-91, 66, 147-9, 160-2, 167-9, 174-7. Complainant argues that the Agency’s issuance of a LOW and sensitivity training to S1 confirm that management officials believed his allegation, but the record does not support his assertion. Rather, the Postmaster (PM) stated that she conducted an investigation and questioned witnesses, but no one corroborated Complainant’s allegation that S1 used the n-word. Instead, PM stated that the witnesses raised concerns regarding S1 using “aggressive tones” and S1 admitted to using a “more forceful” tone and getting a “little loud” when speaking to Complainant. The LOW also noted that S1 denied using the n-word. As such, PM determined that corrective action was warranted. ROI at 126-7, 131-2. Based on the evidence of the record, we find that Complainant has not established by a preponderance of the evidence that S1 used the n-word. See Shila V. v. U.S. Postal Serv., EEOC Appeal No. 0120182019 (Oct. 8, 2019) (the Commission determined that the complainant failed to demonstrate by a preponderance of the evidence that the agency subjected her to harassment as alleged when she provided no evidence to support the unsworn statements by her representative of misconduct by a supervisor); Taunya P. v. U.S. Postal Serv., EEOC Appeal No. 0120141582 (Dec. 29, 2015) (the Commission was unable to determine that the weight of the evidence supported a finding that the supervisor made the alleged comment based on an unsworn statement of a coworker supporting the complainant’s version of events). Regarding claim 2, the record contains some supportive evidence from witnesses. ROI at 136, 142, 156. However, Complainant stated that he did not believe that his race was a factor in S1 harassing him. ROI at 82. Accordingly, we find that Complainant did not establish that the Agency subjected him to discriminatory harassment based on his race. 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 decision finding that Complainant did not establish that he was subjected to discriminatory harassment based on race. 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. 2020003610 7 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. 2020003610 8 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 28, 2021 Date