0120161562
05-16-2018
Hyman W,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
Hyman W,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161562
Agency No. 1G331004615
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's April 13, 2016 final order concerning an 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
At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician (Level 10) at the Agency's Processing and Distribution Center in Miami, Florida.
On September 15, 2015, Complainant filed an EEO complaint alleging that he has been subjected to discrimination and harassment by the Agency on the bases of race (African-American), color (black), and reprisal (engaging in prior EEO activity) when:
1. On April 29, 2015, his first level supervisor ("S1") revoked a previously approved change of schedule,
2. On May 12, June 30, July 4, July 12, and other unidentified dates in 2015, S1 interrupted his breaks and told him to get back to work, and
3. On June 26, 2015, S1 instructed him to perform a certain way when servicing a Delivery Bar Code Sorter ("DBCS") machine.
During the relevant time frame, Complainant reported to "S1" (white, Caucasian), Supervisor, Maintenance Operations (EAS-17) as his first level supervisor and "S2," (white, Caucasian), Lead Manager, Maintenance (EAS-25) as his second level supervisor. In November 2014, S1 and S2 approved a "PS Form 3189 Request for Temporary Schedule Change for Personal Convenience" or "Change of Schedule Form" ("COS Form") for Complainant to accommodate his class schedule while he was in nursing school. The COS permitted Complainant to work Tour 2 hours, but did not change his "bid schedule," which was for Tour 1. After graduation, Complainant opted to obtain a second job compatible with his Tour 2 hours. Then, in April 2015, S1 and S2 revoked all temporary schedules for Tour 1 Electronic Technicians, including (but not limited to) Complainant, citing operational needs. Tour 1 conflicted with Complainant's other job, so he obtained approval for another COS to Tour 2 hours for March 21, 2015 through June 19, 2015. S1 revoked the change in schedule on April 29, 2015.
Complainant alleges that the "operational needs" did not warrant revocation of his COS, and S1, aware of Complainant's second job, was motivated by retaliation and discrimination when he revoked his COS. According to Complainant, S1 has subjected him to ongoing harassment since 2010. Complainant named S1 in multiple prior EEO complaints, and, he identifies three complaints dating from 2010 to 2012 as the basis for the instant reprisal claim.2 Similar to Claims 2 and 3, these prior complaints allege that S1 regularly addressed him in a disrespectful manner and repeatedly directed him to "get back to work" while he was on his break. The Agency accepted documentation Complainant provided relating to these past complaints, as background information for this complaint. 3
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request either a hearing before an Equal Employment Opportunity Commission ("EEOC" or "the Commission") Administrative Judge, or a final decision by the Agency with appeal rights to the Commission. When Complainant did not respond within the timeframe allowed, the Agency issued a final decision on the matter, and found Complainant failed to prove discrimination as alleged. The instant appeal followed.
ANALYSIS
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
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In other words, based on the record, we find that we can render a decision based on a pretext analysis only.
Here, the Agency's proffered legitimate nondiscriminatory reasons for its actions are based on its business judgement on operational needs, such as scheduling and safety. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048.
For Claim 1, S1 and S2 explained that Complainant was needed on his Tour 1 schedule, as were the other Tour 1 employees because they had identified a need to reduce overtime in those positions and because the Agency was an Operational Window Change ("OWC") at their facility to expand the time spent on mail processing. In response to Complainant's contention that in his case, the COS does not impact overtime hours, S2 explained that Complainant's "expertise and knowledge" was necessary during Tour 1. S1 explained that the revoked the second COS for the same reasons Complainant's first COS had been revoked, and noted that only he or S2, as Complainant's direct supervisors had approval authority for a COS, and he never authorized this second COS. Complainant does not dispute that his bid schedule is for Toru 1, and that he intentionally obtained the COS approval signature from another supervisor outside his chain of command. On appeal, Complainant has not offered any persuasive arguments that the Agency's legitimate nondiscriminatory explanations for its actions in Claim 1 are pretext for discrimination. Moreover, an agency is not required to refrain from non-discriminatory personnel actions it would otherwise take simply because the employee has engaged in EEO activity. See Sotomayor v. Dep't of the Army, EEOC Appeal No. 01A43440 (May 17, 2006).
For Claim 2, S1 acknowledges that he has repeatedly instructed Complainant to return to work while he is on break because despite instructions not to do so, Complainant regularly combines one or both of his 15 minute breaks with his 30-minute lunch break. S1 explains that there is not sufficient coverage for Complainant to take combined breaks. While neither S1 nor S2 could identify a specific Agency rule, regulation or policy to support S1's prohibition on combining breaks, such an instruction is within his authority. Additionally, Complainant failed to establish a prima facie case for discrimination, as he did not offer any similarly situated comparators outside his protected class that S1 permitted to combine breaks. While Complainant may not agree with S1's rule against combining breaks, other than bald assertions, he has not offered any evidence of discriminatory motive, and has not shown S1's instruction to be so unreasonable as to indicate pretext for a discriminatory motive. See Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013) (the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive").
For Claim 3, Complainant states that he was performing a "Daily PM Route" on a DBCS machine when S1 interrupted him while he was testing the belt tracking. Without asking Complainant what he was doing, he instructed Complainant not to push the test deck with his hand, and to use the paddle instead "because that's the way the machine runs." Complainant had the impression S1 had only come over to "harass [him] some more" and Complainant asked S1 to leave, as he was making him nervous. S1's legitimate nondiscriminatory reason for approaching was that he observed Complainant was not following established safety procedures. One of S1's responsibilities as a supervisor is to ensure employees perform their job duties in a safe manner. Complainant has not established S1's actions were pretext for discrimination, as he has not offered evidence disputing that he was not following Agency safety procedures. Instead, Complainant focuses on S1's tone of voice, and alleged lack of technical knowledge which are insufficient to establish S1's actions were so unreasonable as to indicate pretext without more.
Harassment
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. As this is a reprisal allegation, Complainant must also prove that the conduct was taken because of his prior EEO activity. 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); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).
Claim 1, which constitutes a personnel action, does not constitute harassment given the Agency's legitimate nondiscriminatory reasons discussed above. We note our long-held position that that "managerial decisions and personnel actions that are disadvantageous to the employee do not automatically equate to harassment creating a hostile work environment." See Arnold v. United States Postal Serv., EEOC Appeal No. 01A24022, page 4 (Oct. 9, 2003).
Claims 2 and 3 warrant a harassment analysis based on the repetition of the allegations, and the background information and witness statements Complainant provided to establish a pattern. However, after reviewing Complainant's prior EEO Complaints, there is nearly a three-year gap between those instances of alleged discrimination, and the like and related actions described here. Given the gap in time, we cannot infer ongoing harassment, and based on the information provided, the alleged actions in Claims 2 and 3 are not so severe and pervasive on their own as to constitute harassment. See, e.g. DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000) (instructions and admonishments do not rise to the level of discriminatory harassment). Even if the events in Claims 2 and 3 occurred as alleged, Complainant has not provided sufficient evidence to suggest discriminatory or retaliatory motivation.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
May 16, 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 Agency Nos. 1G331002812 (initial contact Aug. 13, 2012, closed at informal stage via settlement agreement Oct. 14, 2012), 1H331001211 (initiated November 19, 2010, formal complaint filed February 28, 2011, resolved via settlement agreement on April 5, 2011), and 1H331002910 (initiated March 22, 2010, formal complaint filed June 19, 2010, resolved via settlement agreement on August 9, 2010).
3 Complainant's Formal Complaint appears to raise a breach of settlement claim, alleging "[S1] continues to disregard previous resolutions," however, we find the Agency properly identified Complainant's allegations as subsequent acts of discrimination and processed them separately in the instant complaint pursuant to 29 C.F.R. � 1614.504(c).
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