Efrain B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20180120170918 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Efrain B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120170918 Agency No. 4G-770-0196-15 DECISION On January 3, 2017, 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 12, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented in the instant case is whether the Agency’s final Agency decision (FAD), erred in finding that Complainant did not establish that he was discriminated against or subjected to harassment based on his national origin, color, sex, and reprisal for prior EEO activity regarding 29 incidents which formed the basis of his complaint. 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. 0120170918 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager Customer Services, EAS-22 at the Agency’s Rich Hill Station in Houston, Texas. The Agency’s FAD thoroughly discussed the facts in the record, and the instant decision incorporates them as stated. On October 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), color (White), age (52), and reprisal for prior protected EEO activity when: 1. From January through May 28, 2015, his repeated requests for a downgrade to an EAS-22 position in the Houston District were denied; 2. On April 29, 2015, he was interviewed for the position of Manager Customer Services, EAS-22 for Spring Panther Creek and Spring Woodlands and on May 21 & 22, 2015, he was notified he was not selected for either position; 3. Beginning June 2015 and continuing, the Customer Services Operations Manager (CSOM-1) began to direct racial remarks and vulgar language towards him and treated him unprofessionally; 4. On July 24, 2015, he was charged Absent Without Leave (AWOL); 5. On July 26, 2015, he was instructed to report to his unit for an investigation, and subsequently, on July 27, 2015, he was placed on Administrative Leave; 6. On July 29 and August 11, 2015, he was subjected to Investigative Interviews; and subsequently he received a Notice of Proposed Reduction in Grade and Pay dated September 28, 2015; 7. On or around November 9, 2015, management sent him back to Rich Hill Station despite his request to be transferred to another facility due to his health concerns; 8. On or around November 18, 2015, he became aware management ignored his 650- appeal request and issued him a Letter of Decision reducing his Notice of Proposed Reduction in Grade to a 14-Day Suspension; 9. On November 19, 2015, and other dates (to be specified) management did not respond to his emails or denied his requests for equipment and/or assistance to include additional supervisors; 10. On or around December 1, 2015, he became aware he was not selected for several detail positions in Operations; 11. On or around December 4, 2015, he became aware he was not selected for a detail Labor Specialist position; 12. On December 24, 2015, he was not paid properly for the extra hours worked; 13. On December 29, 2015, he was subjected to an Investigative Interview; 14. On December 31, 2015, he was issued a Letter of Warning; 15. On January 15, 2016, his request to issue discipline to his subordinate employees was denied; 16. On January 20, 2016, he became aware he had not been selected for the EAS-24 Beechnut Manager position; 0120170918 3 17. On January 26, 2016, even though he scheduled an investigative interview for his supervisors regarding an untimely Street Supervision report, he was subjected to an investigative interview regarding the same matter; 18. Management continues to delay meeting with him and continues to procrastinate in making final decisions on the disciplinary actions that have been issued; 19. On various dated to include March 1 & 5, 2016, his Manager ignored his request for assistance; 20. On March 4, 2016, the Postmaster and CSOM-2 did not respond to his email request for Upward Mobility opportunities; 21. On March 8, 2016, CSOM-3 denied his request for a lateral to the Manager of Customer Service at the Roy Royal Station; 22. On March 14, 2016, he was notified he was not selected for the Manager Customer Service, EAS-24 position at North Shepherd; 23. On March 15, 2016, he was notified he was not selected for the Manager Del/Customer Service Programs, EAS-22; 24. On March 15, 2016, he was notified he was not selected for the Manager Post Office Operations, EAS-25; 25. On March 17, 2016, his request for a cross training opportunity in Labor was denied; 26. On March 17, 2016, he was notified he was not selected for the position of Manager Customer Service EAS-24 at Beechnut; 27. On April 20, 20116, he was notified he was not selected for the position of Manager Customer Service Operations EAS-23 Area 3 (posting #10010288); 28. On April 20, 2016, and other dates he was embarrassed and humiliated in front of Senior Management during a SSI meeting by a Manager; and 29. On April 22, 2016, he was notified he was not selected for Operations Program Specialist EAS-17. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 and harassment as alleged. CONTENTIONS ON APPEAL Complainant did not submit a brief on appeal. The Agency requests that the FAD be affirmed as it articulated legitimate, nondiscriminatory reasons for its actions, and, Complainant did not demonstrate that the reasons were pretext for discrimination. 0120170918 4 The Agency also found that Complainant’s harassment claim failed, as the incidents complained of were work related matters and were not severe or pervasive enough to establish a hostile work environment. ANALYSIS AND FINDINGS Standard of Review 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”). Disparate treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Based on a thorough review of the record, we find that assuming, arguendo, Complainant established a prima facie case of discrimination as to all of his protected bases, the Agency articulated legitimate, nondiscriminatory reasons for each of the adverse actions set forth above. We find that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus, and there is no persuasive evidence in the record that Complainant was subjected to discrimination. As we noted above, Complainant did not provide a statement on appeal indicating why he disagreed with the Agency’s findings and conclusions in this case. 0120170918 5 With respect to the various claims of nonselection, the Agency fully explained why Complainant was not selected for the various positions, and Complainant did not demonstrate that he was so better qualified for the positions that discrimination could be inferred. The Agency also explained that, contrary to Complainant’s belief otherwise, lateral transfers were not automatic. The Agency indicated that an employee had to go through the bidding process for such a transfer, and that he was not the successful bidder here. With regard to the claims involving Complainant’s interactions with management, leave, investigations, being downgraded, and being subjected to discipline, the Agency explained that when Complainant did not show up for work and had not taken leave, management entered his office and found 19 boxes of undelivered mail. Thereafter, an investigation was initiated and it was determined that Complainant had violated Agency policy and had acted in an unbecoming manner for a supervisor; consequently, he was demoted. The Agency also explained that Complainant was issued a Letter of Warning because he repeatedly failed to deliver Amazon items in a timely manner. Management indicated that they did not recall Complainant ever requesting to place his supervisor off-duty for falsification of Express Mail scanning labels. Further, there were also conversations with management regarding Complainant’s desire to transfer to another location, his need for assistance and equipment, and various other topics. We find no persuasive evidence that discriminatory animus played a role with respect to management’s determinations. Further, with respect to Complainant’s allegation that his supervisor made remarks regarding his Mexican heritage and that she used vulgar language, an investigation was conducted and the allegations were found not to be true. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. With regard to his claim of not being paid for the extra hours he worked, management explained that Complainant is an exempt employee and therefore he was paid properly. We find that Complainant did not demonstrate that the Agency’s actions were pretext for discrimination. In sum, our review of the record confirms the Agency’s assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant’s performance and conduct in the workplace. Nothing in the record, demonstrates that the actions by the Agency were motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). With regard to Complainant’s allegation of discriminatory harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 0120170918 6 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, we find that the incidents identified were in the nature of common workplace interactions and employment actions that occur between a supervisor and a subordinate employee in the workplace. We agree with the Agency’s findings in the FAD that the incidents, considered together and taken as a whole, do not rise to the level of a discriminatorily hostile workplace. CONCLUSION Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not show that he was subjected to discrimination and/or harassment. 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. 0120170918 7 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 December 7, 2018 Date Copy with citationCopy as parenthetical citation