EEOC Appeal 2020000919

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Norbert K.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 2020000919
Hearing No. 480-2018-00236X
Agency No. 1F-914-0038-16
DECISION
On October 24, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 23, 2019 final action 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency’s Santa Barbara
Processing and Distribution Center (P&DC) in Santa Barbara, California.
On December 23, 2016, Complainant filed the instant formal complaint. 	Complainant claimed
that the Agency discriminated against him based on race (Caucasian), national origin (Hispanic),
sex (male), and age (over 40) when:
1. 	since September 2015 to present, Complainant felt intimidated by his supervisor;
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.

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2. 	on September 7, 2016, Complainant was told to get back to this work station by his
supervisor when he was observed outside of his work area, “chatting up” a co-worker;
and
3. 	on September 13, 2017, Complainant’s supervisor laughed at work, while also walking
past Complainant.2
After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. 	On September 20, 2019, the AJ issued a decision by summary
judgment in favor of the Agency.
The instant appeal followed. Complainant did not submit a timely brief on appeal.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 	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. (as revised, August 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).
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. We determined that in this case, the AJ properly exercised
discretion in issuing a decision without a hearing, for the reasons more fully elaborated below.
2 The record reflects that on January 26, 2017, the Agency issued a final decision dismissing the
instant formal complaint for failure to state a claim. 	On appeal, the Commission reversed the
Agency’s dismissal and remanded the matter to the Agency for further processing. Norbert K. v.
United States Postal Service, EEOC Appeal No. 0120171310 (June 26, 2017). 	Following the
Commission’s decision, the Agency processed the remanded claims in accordance with 29 C.F.R.
§ 1614.108, which is now the subject of the instant appeal.

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To prove her 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 or age. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. 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).
Regarding claim 1, Complainant asserted that since September 2015 to present, Complainant felt
intimidated by his supervisor. Specifically, the AJ correctly found that it was undisputed that on
March 2, 2015, Complainant was stretching his legs when his supervisor passed by Complainant’s
station and asked him what he was doing to which Complainant responded, “I am stretching my
legs.” Five minutes later, the supervisor issued an oral warning to Complainant that he should be
working instead of stretching.
Regarding claim 2, Complainant alleged that on September 7, 2016, Complainant was told to get
back to this work station by his supervisor when he was observed outside of his work area “chatting
up” a co-worker. He admitted he was outside of his work area and chatting with his co-workers
rather than working when the supervisor instructed to return to work. According to Complainant,
the supervisor started mimicking him and “making fun of [Complainant’s] talking with sarcasm
and doing gestures.” He said that the supervisor said, “Speak English only. 	I speak English. I
don’t understand what you say.” As Complainant walked to his station, the supervisor asked twice
“you have a problem?” Complainant responded, “you’re the problem.”
The supervisor (Hispanic/Latino, white male, over 40) acknowledged instructing Complainant to
return to work but said “there was no sarcasm, no funny faces and no mimicking going on.”
Regarding claim 3, Complainant alleged that on September 13, 2017, Complainant’s supervisor
laughed at work, while also walking past Complainant. The supervisor denied this allegation.
In his decision, the AJ concluded that even if Complainant’s allegations were accepted as true,
they were isolated incidents that did not amount to the creation of a hostile work environment in
violation of the anti-discrimination statutes. 	The AJ also found that the fact that the supervisor
told Complainant on one occasion to speak English because he could not understand what
Complainant was saying did not constitute an English-only rule since there was no evidence and
“Complainant does not assert, that [supervisor] was directing Complainant not to speak Spanish.
Further, the statement to Complainant to speak English because [supervisor] could not understand
what Complainant was saying was not sufficient, by itself, or when considered with the other
statements and actions complained of by Complainant to create an unlawful hostile work
environment.”
Here, we concur with the AJ that the evidence of record, even assumed to be true as alleged by
Complainant and considered together amounted to isolated incidents of relatively minor severity.

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The record simply does not support a determination that the supervisor’s actions were sufficiently
severe or pervasive to amount to a violation of Title VII or the ADEA. Moreover, there is no
evidence to support a finding that these events were motivated by discrimination animus. In sum,
beyond his bare assertions, Complainant has simply provided no evidence to support his claim that
his treatment was the result of his race, national origin, sex or age.
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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, 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.

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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
October 15, 2020
Date