0120171096
07-31-2018
Alexander A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alexander A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171096
Agency No. 1G-701-0024-15
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's November 23, 2016 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.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Baton Rouge, Louisiana Processing and Distribution Center.
On March 24, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (African-American) and sex (male) when:
1. on February 6, 2015, he was moved from his bid assignment and he was verbally abused by his manager;
2. from February 6, 2015 through June 6, 2015, his supervisor did not give him a schedule, a machine to work on, or a partner to work with;
3. from July 2009 through June 2015, his supervisor did not properly train him for his position nor was he able to get express mail training;
4. from 2009 through 2015, his supervisor scheduled a co-worker to work higher level and a preferred duty assignment prior to him being assigned that work; and
5. on July 4, 2009, his supervisor forced him to bid to a different location.
On April 14, 2015, the Agency issued a final decision dismissing the instant claim 1 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. Complainant v. United States Postal Service, EEOC Appeal No. 0120112920 (October 28, 2011). Following the Commission's decision, the Agency processed the remanded claim 1 in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
The record reflects that in December 2015, the Agency received a request from Complainant requesting that his complaint be amended by including claims 2 - 5. On December 3, 2015, the Agency issued a document entitled "Acknowledgment/Acceptance of Amendment to Complaint" granting Complainant's request to have his complaint amended by including claims 2 -5.
After the investigation of claims 1 - 5, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On November 23, 2016, the Agency issued the instant final decision. The Agency again dismissed claim 1 for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency then proceeded to address claims 1 - 5 on the merits, finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
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 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Regarding claim 1, Complainant asserted that on February 6, 2015, he was moved from his bid assignment and he was verbally abused by his manager.
The Manager Distribution Operations (black American female) stated that Complainant was not moved from his bid assignment on February 6, 2015. Specifically, the manager asserted that on that day, Complainant worked his bid assignment in Automation and Hazmat operation which were within his work area. The manager further stated that Complainant's following duties were to sweep and feed on the Delivery Bar Code Sorter and to process Hazmat volumes.
Further, the manager stated "I do not recall being verbally abusive to [Complainant]. I only explained to him that his job is Mail Processor in Automation. Apparently, [Complainant] considered it abusive because he was not in agreement."
Regarding claim 2, Complainant alleged that from February 6, 2015 through June 6, 2015, his supervisor did not give him a schedule, a machine to work on or a partner to work with.
The manager stated that during the relevant period, Complainant worked Automation for 6 hours and Hazmat for 2 hours. The manager further stated that starting February 6, 2015, Complainant was given an assignment.
The Supervisor Distribution Operations (African-American male) stated that during the relevant period, he was Complainant's immediate supervisor. The supervisor stated at that time Complainant worked his bid assignment which was Automation. The supervisor stated as Complainant's supervisor, "I gave him assignments & instructions every day he reported to work."
Regarding claim 3, Complainant alleged that from July 2009 through June 2015, his supervisor did not properly train him for his position nor was he able to get express mail training. The supervisor denied Complainant's allegation. The supervisor stated that Complainant "has been in the Postal Service over 20 [years] and has been trained in numerous jobs throughout his career. Everywhere employee has worked, he was trained to do the job."
Further, the supervisor also stated that Express Mail was part of Complainant's job description. The supervisor stated that Complainant "has worked that Express Mail operation numerous of times through the years by himself. At some point early on, the employee was trained in that operation."
Regarding claim 4, Complainant asserted that from 2009 through 2015, his supervisor scheduled a co-worker to work higher level and a preferred duty assignment prior to him being assigned that work.
The manager explained that the term "higher level" is the description of an employee assignment to a "skill preferred" position. She stated that as of 2010, the Express Mail was no longer considered a higher-level position. The manager further stated that she did not make a decision regarding Complainant working higher level in Express Mail nor was she involved in any such decision.
The supervisor stated that he was not aware of the higher-level assignment Complainant described as a preferred assignment. The supervisor also stated that Complainant was assigned to work Express Mail but does not recall the specific dates.
Regarding claim 5, Complainant alleged that on July 4, 2009, his supervisor forced him to bid to a different location. The manager stated while she was not aware about Complainant's job being abolished, Complainant had worked a different period for a short time.
The supervisor stated that he was not aware of Complainant's job being abolished.
Agency management articulated a legitimate, nondiscriminatory reason for its actions. Beyond his bare assertions, Complainant produced inadequate evidence to establish that these explanations were pretext designed to mask discrimination animus.
Harassment/Hostile Work Environment
Complainant has also alleged that the allegations discussed above also created a discriminatory hostile work environment. 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 his protected bases - 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. Here, the record does not support a determination that Complainant was harassed due to discriminatory animus.
CONCLUSION
We have reviewed the record in its entirety, and we AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
July 31, 2018
__________________
Date
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 Because we affirm the Agency's finding of no discrimination concerning claim 1 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. failure to state a claim).
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