[Redacted], Ryan L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 2, 2021Appeal No. 2021000677 (E.E.O.C. Mar. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ryan L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021000677 Agency No. 4E-500-0008-20 DECISION 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 September 25, 2020 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 Full Time Mail Handler Equipment Operator at the Agency’s Des Moines NDC in Des Moines, Iowa. On February 28, 2020, Complainant filed a formal EEO complaint claiming that the Agency subjected him to a hostile work environment based on race (African-American) and sex (male) when: 1. on October 9, 2019, Complainant was verbally attacked by a female co-worker (CW1) who made references to Complainant’s private body part; 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. 2021000677 2 2. on October 16, 2019, and other dates to be specified, management caused Complainant’s personal property and work area to be thrown in disarray; 3. on October 21, 2019, Complainant was issued a Letter of Warning; and 4. on December 30, 2019, and January 6, 2020, Complainant reported sexually graphic drawings in the men’s locker room referencing a male’s private part, which he felt had been directed at him. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant did not respond to the Agency’s notice. On September 25, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - Claim 3 (Letter of Warning) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health 2021000677 3 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate, non-discriminatory reasons for issuing Complainant a Letter of Warning. The Distribution Operations Supervisor (DOS) testified that she issued Complainant discipline for improper conduct after she investigated the matter. The DOS explained that on September 26, 2019 Complainant and another co-worker (CW2) were involved in a dispute. The DOS collected statements from both Complainant and CW2 and they both reported that the other exhibited reprehensible behavior. Specifically, Complainant reported that CW2 yelled at him, used profanity, and made a racial slur. CW2 indicated that Complainant had called him “fag-t” on several occasions. During the investigative interview, the DOS indicated that Complainant acknowledged that he moved staged mail that another person was working on, but Complainant refused to any further of the DOS’s questions. A copy of the October 21, 2019 Letter of Warning reflects that Complainant was charged with improper conduct. The letter explains that Complainant moved mail from another operation without checking first and Complainant responded in an unbecoming, bullying, and confrontational manner when he was questioned about moving the mail. Specifically, the letter indicated that Complainant had a confrontation with CW2 and exhibited intimidating, threatening, and unprofessional behavior. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race or sex. Because there is no evidence that the disputed action was motivated in any way by Complainant’s race and sex, claim 3 of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Harassment - Claims 1, 2, and 4 To establish a claim of discriminatory environment 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 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021000677 4 In other words, Complainant must establish 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, his race and sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. Claim 1 - Verbal Attack with CW1 The DOM testified that he overheard Complainant and CW1 yelling at each other on October 9, 2019. The DOM explained that both Complainant and CW1 were disrespectful toward each other. The DOM recalled that CW1 stated that Complainant “had a small penis” and Complainant responded by telling CW1 that she was “going to get it and [he] would see her later.” After the DOM separated Complainant and CW1 from each other, the DOM stated that CW1 informed him that she felt threatened by Complainant, and the DOM called Postal Inspection to conduct interviews because he was not clear as to all what happened and what was said. In the interim, the DOM stated that he sent both Complainant and CW1 home that day and both were interviewed during the investigation. Claim 2 - Personal Property in Disarray The DOS testified that Complainant notified her in October 2019 that his work area was in disarray. The DOS noted that Complainant’s work area had letter trays on the floor, and the pallet bases were moved. However, the DOS indicated that she did not see any of Complainant’s personal belongings misplaced. Nevertheless, the DOS stated that she contacted the Labor division regarding the matter and was advised to report the issue to the Manager. The DOM confirmed that Complainant informed him that items in his work area were pushed together from a pallet jack. The DOM acknowledged that Complainant asked, during this period, if he could have guard rails installed in his work area to prevent this issue. Although the DOM granted Complainant’s request for the guard rails and had them installed, the DOM explained that Complainant’s work station was subsequently moved to another area. The DOM also acknowledged that Complainant’s personal property had previously been moved. However, the DOM noted that Complainant’s work area was used for different shifts and was not solely Complainant’s work area. The DOM further noted that some of Complainant’s personal items were found during his moving to a different work station, but the DOM indicated that postal rules specified that personal belongings should not be left in the work area. 2021000677 5 Claim 4 - Sexually Graphic Drawings Complainant explained that the sexually graphic drawings were found in the men’s bathroom door stall and on the bench next to his locker. Complainant further explained that the image made a reference to male genitalia.2 Complainant acknowledged that management removed the image, but management made no effort to determine who drew the image. Complainant stated that he believed the image was directed to him because it occurred two and three months after his dispute with CW1. The DOM testified, as corroborated by Complainant’s testimony, that Complainant did not notify him about the graffiti. Rather, the DOM was informed about the matter by the EEO Specialist. The DOM explained that once he was made aware, he had the graffiti immediately removed. The DOM indicated that he was never informed by the EEO Specialist who drew the graffiti, an investigation was not conducted, and there was no corrective action because the DOM did not know who drew the images. The DOM indicated that he was never given the names of who allegedly drew the graffiti and he also indicated that he asked employees in the breakroom if they saw or knew anyone who did, but he did not receive any information. However, the DOM clarified that all employees received a service talk about the incident. The DOM further denied that Complainant discussed with him his concerns about the images. Considering these claims, even if true, Complainant has not shown evidence that considerations of his race and sex motivated management’s actions toward Complainant. The record indicates the DOM sent both Complainant and CW1 home after the dispute. Additionally, the DOM explained that he had an investigation conducted into the matter after CW1 claimed that she felt threatened by Complainant. The record further reflects that Complainant’s workspace was shared with other employees, and Agency policy directed employees not to leave personal items in the work area. Additionally, the DOM indicated that he granted Complainant’s request to have guard rails to which were later installed. Regarding the sexually graphic images, the DOM testified that he immediately had the images removed after the EEO Specialist informed him of the images. Although this incident occurred approximately two - three months after Complainant’s altercation with CW1, the record indicates that Complainant did not discuss any concern with the DOM about the sexually graphic images. Because the DOM did not know who drew the images, even after inquiring from other employees about the matter, the DOM stated that all employees participated in a service talk regarding the sexually graphic images. Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s race and sex. 2 The EEO Counselor’s report includes pictures of the sexually graphic images. One image states, “Lil Dick Cry Baby,” and another image states “Little Dick” accompanied with a drawing of a penis. 2021000677 6 As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021000677 7 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. 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 March 2, 2021 Date Copy with citationCopy as parenthetical citation