[Redacted], States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 30, 2022

Appeal No. 2022001284 (E.E.O.C. Mar. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001284 Hearing No. 560-2021-00131X Agency No. 4E-640-0074-20 DECISION On December 30, 2021, 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 December 1, 2021 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 Regular Clerk, Grade PS-6, at the Agency’s Antioch Post Office in Kansas City, Missouri. On October 13, 2020, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on race (African-American) and color (Black) when on June 23, 2020, Complainant was threatened by a customer during a transaction, and Complainant felt that management failed to take appropriate action. 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. 2 2022001284 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal Complainant raises the following arguments: 1) that local law enforcement did not interview Complainant as a victim; 2) the Agency should have been permissive in giving Complainant additional time off to recover mentally; 3) the Postal Inspection Service did not follow-up on investigating the customer who threatened Complainant; 4) that management did not allow Complainant to take the day off after the incident, which shows a lack of empathy for Complainant as an victim of anti-African American speech; 5) Complainant’s supervisor showed a lack of concern by merely sending a co-worker to the office to accompany Complainant following the incident, and by not contacting Complainant to check on his well-being. 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). EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 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”). The record reflects that Complainant asked a Caucasian customer about the contents of package that the customer wanted to send as media mail. This customer became irate and said that he did not have to answer Complainant’s question. Thereafter, the customer said he would return and then see if “all black lives really matter” which was perceived as a veiled threat. Complainant asserted that the Agency would have reacted more effectively but for his race. Complainant has stated that the Agency should have investigated the customer more aggressively and authorized Complainant to take time off seek therapy as a result of the customer’s hostility. EEOC examines claims of disparate treatment by applying the analysis from the U.S. Supreme Court. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case 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 Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The Agency bears the second burden to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 3 2022001284 If the Agency carries the second burden, then Complainant has the third burden of demonstrating, by a preponderance of the evidence, that the Agency’s reasons for its actions are pretexts to mask discriminatory motives. In other words, Complainant must persuade us that the Agency acted based on prohibited animus against his race or color. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000). Even if Complainant had made the prima facie case, the Agency has provided a legitimate explanation of its conduct after Complainant reported the customer’s threatening language. Complainant’s supervisor explained that although Complainant asked for the day off, the Agency instead sent another employee to be present with Complainant. The Agency determined that the Antioch Post Office was regularly staffed by a single clerk and that it could not find another clerk to cover for Complainant on the day of the incident. Moreover, while Complainant has criticized the overall response to the customer’s threat against him, we find it that officials reacted in a manner that was adequate. The record reveals local police were contacted and they documented the incident but declined to pursue further investigation. Meanwhile a Postal Inspector completed a threat report, identified the threatening customer, and interviewed Complainant’s supervisors. Management offered Complainant the opportunity to work at another facility where he would not be the lone employee interacting with customers. Complainant declined this offer. Taken together, we find that the Agency showed sufficient concern about the threat against Complainant and made a genuine efforts to prevent a similar situation from reoccurring. Finally, we also find that Complainant did not evidence that the Agency’s explanation of its remedial conduct was a pretext for discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final decision finding no discrimination. 4 2022001284 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. 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. 5 2022001284 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 30, 2022 Date