Kristopher M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120172194 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristopher M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172194 Agency No. 4G-350-0140-16 DECISION On June 5, 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 April 28, 2017 final agency decision (FAD) 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q0-01, at the Agency’s Forestdale Station in Birmingham, Alabama. Complainant experiences complications from several conditions including, Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, lumbar strain with bulging degenerative disc disease, and cervical bulging degenerative disc disease. Complainant stated that his conditions affect his ability to function properly when he is subjected to stress and cause emotional, physical, and mental fatigue. Complainant averred that his conditions are lifelong, but that he is able to perform his work duties. 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. 0120172194 2 Complainant asserted that on June 27, 2016, the Acting Manager of Customer Service (S1) placed him on emergency placement when he chose to leave work following an exacerbation of his conditions. Complainant explained that he initially requested overtime or auxiliary assistance and informed S1 that he could not work eight hours. Complainant pulled down his route for delivery and left the amount of work that he requested auxiliary assistance for on the workroom floor. S1 met Complainant on his route with the work that Complainant left on the workroom floor. When S1 arrived on Complainant’s route, she directed him to deliver the additional mail. Complainant responded that he could not carry the mail because of health concerns. Complainant returned for an investigative interview on June 28, 2016, regarding the previous day’s incident. On July 19, 2016, S1 issued Complainant a Letter of Warning (LOW) for failure to follow instructions and improper conduct. The LOW referred to the June 27, 2016 incident, and noted that Complainant refused to comply with a direct order. Subsequently, Complainant and management resolved this matter in the grievance process. Complainant claimed that on August 3, 2016, he called the Manager of Customer Service (S2) to inform her that he was not feeling well and was behind schedule. Complainant asserted that S2 told him that she would send assistance and instructed him not to return the mail that he had. Subsequently, Complainant passed out while on his route and required emergency ambulance assistance. Complainant remained absent from work on August 4 and 5, 2016, and S2 charged Complainant with leave without pay (LWOP) for his absence. Complainant requested administrative leave, which was denied. The Labor Day Holiday fell on Monday, September 5, 2016. Because of this, Complainant was scheduled to work on Saturday, September 3, 2016, which would normally have been his day off. On September 3, 2016, Complainant called in and requested leave. On September 12, 2016, S2 issued Complainant a LOW for failure to follow instructions and failure to be in regular attendance. Specifically, the LOW indicated that Complainant failed to report to work on September 3, 2016, as ordered and failed to provide an acceptable explanation when questioned during an investigative interview. On September 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male) and disability when: 1. On June 27, 2016, he was placed on emergency placement in off-duty without pay status; 2. On July 19, 2016, he was issued a Letter of Warning for failure to follow instructions/improper conduct; 3. On August 3, 2016, his request for auxiliary assistance for more than 30 minutes was partially denied; 0120172194 3 4. On August 4-5, 2016 and September 3, 2016, his time was charged to leave without pay (LWOP); 5. On September 12, 2016, he was issued a Letter of Warning; and 6. On September 20, 2016, his manager stated, “that [Complainant] was not her daddy.” 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 (AJ). 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 as alleged. In its FAD, the Agency noted that claims (1), (3), and (5) were not examined as discrete acts because Complainant was paid for his time in off-duty status, Complainant was not denied auxiliary assistance as alleged, and the LOW dated September 12, 2016 was expunged through the grievance process. Claims (2) and (4) were treated as discrete acts. The Agency assumed, without so finding, that Complainant is a person with a disability under the Rehabilitation Act and that he established a prima facie case of discrimination. The Agency found that management articulated legitimate, nondiscriminatory explanations for their actions. Regarding claim (2), the Agency noted that S1 explained that she issued a LOW due to Complainant’s failure to comply with a direct order. Moving to claim (4), S2 stated that Complainant was charged with LWOP on August 4 and 5, 2016, because he did not have sufficient leave. As for September 3, 2016, S2 stated that Complainant was informed verbally and via the posted schedule that he was required to work. S2 said that Complainant did not report and called the Enterprise Resource Management System (ERMS) hotline. With respect to pretext, the Agency determined that Complainant failed to provide evidence or testimony to support his assumptions or refute the explanation that he was charged with LWOP due to insufficient leave. The Agency further explained that Complainant did not offer anything to disprove the reason he was issued the LOW on July 19, 2016. Likewise, the Agency found that Complainant did not provide evidence showing that Agency officials harbored discriminatory animus toward members of Complainant’s protected groups. Regarding Complainant’s harassment claim, the Agency found that, considering the totality of the circumstances, the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Furthermore, management provided legitimate, nondiscriminatory reasons for its actions with respect to all claims. Accordingly, the Agency concluded that Complainant failed to show that he was subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. 0120172194 4 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). 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review, we assume, arguendo, that Complainant established a prima facie case of discrimination and is a qualified individual with a disability. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. With respect to claims (1) and (2), S1 affirmed that she placed Complainant on emergency placement and issued the LOW because Complainant refused to comply with a direct order. Investigative File (IF), at 460-462. She asserted that on June 27, 2016, Complainant submitted a PS Form 3996 requesting overtime or auxiliary assistance, but she instructed Complainant to carry his own route for the day. Id. at 460- 461. S1 stated that Complainant left an hour of his route in the building and that mail was carried out to him on his route. Id. at 461. S1 stressed that Complainant became angry when management arrived with the mail and stated that he would leave work if he had to complete his full route. Id. She added that Complainant was instructed to remain at work and deliver the mail, but he refused and returned to the Post Office to clock out. Id. S1 affirmed that she directed Complainant to return to his route to deliver mail and questioned whether he was going back to his route. However, Complainant did not acknowledge S1’s comments or questions, and S1 placed Complainant on emergency placement. Id. Complainant was instructed to report the following day for an investigative interview. The record indicates that Complainant resolved the matter with management through the grievance process. Id. at 573-574. 0120172194 5 Regarding claim (3), S1 affirmed that Complainant received auxiliary assistance on August 3, 2016. IF, at 467. Likewise, S2 asserted that Complainant received 3.76 hours of auxiliary assistance. Id. at 489, 505. S2 stated that Complainant was initially given 2.75 hours of assistance, but she received a call from a resident stating that Complainant was placed in an ambulance and she sent an employee to cover the remaining hour of Complainant’s route. Id. at 491. With respect to Complainant’s claim that he was charged with LWOP in August and September 2016, S2 affirmed that when Complainant questioned why he did not receive sick leave for August 4 and 5, 2016, she informed him that he had an insufficient sick leave balance and could not be paid sick leave. IF, at 492. Moreover, the record indicates Complainant submitted a PS Form 3971 on August 4, 2016, requesting LWOP for August 4 and 5, 2016. Id. at 576. As for September 3, 2016, the record does not include a completed PS Form 3971 or medical documentation for Complainant on September 3, 2016, which should have been provided in accordance with the Agency’s leave policy. Complainant alleged that he called in to use Family Medical Leave Act (FMLA) sick leave in a timely manner and he did not know why management charged him with that leave type. S2 explained that Complainant did not show up for work and called the ERMS hotline. Id. at 492. Regarding Complainant’s claim that he was issued a LOW on September 12, 2016, S2 affirmed that Complainant received the LOW because he failed to be regular in attendance. IF, at 494-495. Specifically, the LOW was issued when Complainant failed to report on September 3, 2016, as noted above. Id. at 588. S2 stated that Complainant was notified that he was scheduled to work the holiday via the posted schedule and verbally, but did not report. Id. at 494. With respect to Complainant’s claim that S2 stated that “he was not her daddy,” S2 denied having a conversation with Complainant in which she told him that he was not her daddy or yelling at him. IF at 497, 502. Even if S2 made the comment that Complainant alleges, we find this to be an isolated remark that did not alter the terms and conditions of Complainant’s work environment or constitute harassment. We have held that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). As Complainant failed to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of 0120172194 6 discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. Hostile Work Environment Finally, to the extent that Complainant alleges that he was subjected to a hostile work environment with respect to the matters set forth in his complaint, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 0120172194 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation