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

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020004805 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shon T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020004805 Hearing No. 480-2019-00807X Agency No. 1F-957-0037-19 DECISION On April 6, 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 March 4, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Fresno, California Processing and Distribution Center facility in Fresno, California. On May 6, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (not specified), national origin (India), sex (male), religion (Sikh), color (brown), disability (unspecified), age, and reprisal for prior protected EEO activity when, on 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. 2020004805 2 several dates between May 22, 2018 and December 17, 2018, the Supervisor, Distribution Operations (Supervisor) followed him into the men’s restroom multiple times per night.23 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: On his formal complaint, Complainant identified 42 alleged instances occurring between May 22 and December 17, 2018 when Supervisor allegedly followed him into the men’s restroom. He stated that Supervisor “has an unnatural attraction toward [him]” and does not follow White, Black, Russian, French, English, Spanish, German, Swedish, Polish, Norwegian, Finnish, or Danish women into the restroom. He described Supervisor’s actions as “perverted.” During the investigation, Complainant declined the opportunity to provide an affidavit in support of his complaint. Regarding his alleged basis of disability, Complainant declined to identify his disability. Supervisor and a Manager, Distribution Operations (Manager1) attested that they had no knowledge of Complainant having any medical condition or impairment or work restrictions. Another Manager, Distribution Operations (Manager2) attested that Complainant had high blood pressure which caused headaches and there was medical documentation relating to his Family Medical Leave Act case and absences due to high blood pressure. Regarding his alleged basis of retaliation, Complainant identified a prior EEO complaint on his formal complaint. Supervisor1 and Manager2 attested that they were aware of Complainant’s prior EEO activity and were named management officials in a prior EEO complaint. Manager1 attested that he was unaware of Complainant’s prior EEO activity and had not been named in any prior EEO complaint filed by Complainant. Agency records show that Complainant previously filed 15 previous complaints and Supervisor was a named management official in one complaint and Manager2 was a named management official in two complaints. Manager1 was not named in any of Complainant’s prior EEO complaints. The Agency’s management officials provided testimony relating to Complainant’s harassment allegations. Supervisor, Manager1 and Manager2 attested that employees are not required to notify their supervisors when they need to leave their work area to go to the restroom. Supervisor denied following Complainant into the restroom on any of the alleged dates. He attested that he did not do anything that would be considered as unwanted advances, sexual conduct, unwanted touching, or verbal engagement of a sexual nature with Complainant. He attested that he did not know when Complainant took his breaks or lunch, so he did not know if any of his restroom visits coincided with those times. 2 Complainant indicated his race and national origin were Indian. 3 Complainant did not expressly allege sexual harassment, but we will consider his claim as to sexual and/or non-sexual harassment due to the nature of his allegations. 2020004805 3 Manager1 and Manager2 attested that they never observed Supervisor following Complainant into the restroom on any of the alleged dates. Each attested that he or she had never observed Supervisor do anything that would be considered as unwanted advances, sexual conduct, unwanted touching, or verbal engagement of a sexual nature with Complainant. Manager2 attested that, based on the times Complainant alleged he was followed, some of these times are just before or after lunch or breaks. She attested that Supervisor reported to her that Complainant was mad at him and accused him of following him into the restroom. She attested that Supervisor reported that he went into the restroom to wash his hands, Complainant was already there, and Supervisor washed his hands and left the restroom. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request on the grounds that Complainant failed to provide good cause for his failure to appear at a Status Conference and his failure to provide responses to the EEO Investigative Affidavit concerning the factual basis for his claims. The AJ remanded the complaint to the Agency, and 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. In response to the appeal, the Agency argues that its final decision was appropriate because there were no genuine issues of material fact, even when viewing the evidence in the light most favorable to Complainant, and Complainant cannot establish that he was subjected to discrimination, retaliation, or harassment on any basis. The Agency also notes that Complainant has not submitted anything to dispute its final decision or showing that the final decision failed to include facts material to the decision. 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”). Complainant has alleged that he was subject to harassment on numerous alleged instances when Supervisor followed him into the men’s restroom. To establish a claim of hostile 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) 2020004805 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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, 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, national origin, sex, religion, color, disability, age, or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s harassment allegations that Supervisor followed him into the restroom on multiple occasions reflect petty annoyances between a supervisor and subordinate. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Although Complainant alleged that the Agency acted discriminately, there is insufficient evidence to support the allegation that his race, national origin, sex, religion, color, disability, age, or prior protected EEO activity played any role in the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support a claim of discriminatory harassment. 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. 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. 2020004805 5 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. 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. 2020004805 6 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 February 22, 2021 Date