[Redacted], Abdul M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionSep 27, 2021Appeal No. 2021003398 (E.E.O.C. Sep. 27, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Abdul M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003398 Agency No. 4J-000-0001-20 DECISION 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 June 30, 2021 final decision 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 for the Agency as a Supervisor, Distribution Operations, in Carol Stream, Illinois. On November 27, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Indian Asian), national origin (Indian), sex (male), religion (Hindu), color (Brown), and age. On December 28, 2020, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1) On or around July 23, 2020, as well as on another date, a Labor representative sent Complainant unprofessional emails which degraded him; 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. 2021003398 2 2) On September 29, 2020, his detail was ended; and 3) After his detail was ended and he returned to the plant, a manager yelled at and disrespected him on the workroom floor and threatened his job. In a final decision dated April 2, 2021, the Agency dismissed Complainant’s complaint on procedural grounds. Complainant filed the instant appeal. However, on May 12, 2021, the Agency issued a letter notifying Complainant that it was rescinding its April 2, 2021 final decision. The Agency transmitted the Report of Investigation to Complainant on May 13, 2021. 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 on June 30, 2021 (while Complainant’s appeal was still pending before OFO), pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency reasoned that it articulated a legitimate nondiscriminatory reason for claim (2), ending Complainant’s detail, and that Complainant failed to establish that the articulated reason was pretext for discrimination. The Agency found that the record was devoid of evidence that the actions set forth in claims (1) and (3) were based on Complainant’s protected classes. Thus, the Agency found that Complainant failed to establish a prima facie case of harassment. Based on the foregoing, we find Complainant’s appeal of the Agency’s June 30, 2021 final decision is properly before us. 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 - Complainant’s Detail Ended (Claim 2) A claim of disparate treatment 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 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. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021003398 3 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated a legitimate, nondiscriminatory reason for ending Complainant’s detail. The record contains an affidavit from the Plant Manager (Caucasian, white) for the Agency’s facility in Carol Stream, Illinois. The Plant Manager (P1) stated that she tried to end Complainant’s detail several times. Report of Investigation (ROI) at 93. P1 stated that she had a supervisor who was detailed to her facility that served as the Step-2 designee. P1 stated that the supervisor who was serving as her step-2 designee was called back to his facility of origin and that she was told that she would need to find her own step-2 designee supervisor. ROI at 93. P1 stated that Complainant had been working a detail as a Step-2 designee in the Agency’s Chicago National Distribution Center and that she cancelled his detail so he could return to the Carol Stream facility.2 ROI at 93. Complainant has not established that the Agency’s articulated reason for its action was pretext for discrimination. While Complainant asserts that there were other supervisors on detail, Complainant’s preference that another supervisor’s detail be cancelled (rather than his detail) is insufficient to establish that the Agency’s articulated reason for its action was pretext for discrimination. Harassment (Claims 1 and 3) To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2 The record reflects that Complainant served in this detail for several years. ROI at 94. 2021003398 4 Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Complainant has not established a prima facie case of harassment. The record contains an affidavit from the Labor Relations Specialist (LS) at issue in claim (1). LS acknowledges that he sent an email to Complainant stating: “If you were in a hurry, you should’ve submitted an appropriate request the first time, and I would’ve approved it yesterday! That’s a problem of yours I’ve recently noticed; you’re in a rush that might explain why your decision makes no bloody sense in [a specified grievance]. Probably why I resolve so many NDC cases, that one included due to indefensibility from them not making logical sense.” ROI at 86. LS asserts that he was trying to assist Complainant in becoming a better Step 2 designee but that his intent was not to degrade him. ROI at 86. While the tone of L1’s emails to Complainant may be arguably viewed as somewhat unprofessional, the record is nevertheless devoid of evidence that these emails were based on Complainant’s protected EEO classes. Regarding claim (3), Complainant asserts that a manager (M1) harassed him by making statements related to various work-related issues including, but not limited to the following statements: the availability of clerks to run machines, a clerk being on the phone, a clerk being allowed to leave early, and instructing him that he needed to take lunch. ROI at 19. Complainant asserts that M1 yelled at him ROI at 19. The record contains an affidavit from M1. She asserts that she did not yell at Complainant but did ask him questions pertaining to staffing and other business matters. ROI at 103. Even assuming arguendo that Complainant and M1 engaged in heated discussions over work-related matters, Complainant has not established, by a preponderance of evidence, that these incidents were based on Complainant’s protected EEO classes. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2021003398 5 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, a 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. 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. 2021003398 6 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 September 27, 2021 Date Copy with citationCopy as parenthetical citation