[Redacted], Albert P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2020004112 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Albert P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020004112 Hearing No. 480-2017-00605X Agency No. 4F-900-0412-16 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated March 5, 2020, finding no discrimination concerning his 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant, Q-1, at the Agency’s Nat King Cole Station in Los Angeles, California. On January 9, 2017, Complainant filed an EEO complaint alleging that he was subjected to a hostile work environment based on race (African American) and age (over 40) when: 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. 2020004112 2 1. Beginning in August 2016, he was denied immediate work after completing his training, given used and dirty equipment, and was treated disrespectfully and insensitively after his son was killed; and 2. In September 2016, he was terminated. After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. The record indicates that on July 23, 2016, Complainant began his City Carrier Assistant position, subject to 90-day probationary period. Regarding claim 1, Complainant claimed that he completed training on July 29, 2016, and passed his driving test on August 2, 2016, but he was denied work on August 2, 4, and 5, 2016. Complainant’s manager (M1) indicated that Complainant was not given work on those days because the facility did not have an On-the-Job Instructor (OJI) available to work with him or any extra vehicles available for him to drive. Complainant was informed that he would be called to work when an OJI and a vehicle became available. M1 stated that Complainant did not object to her explanation at that time. M1 indicated that Complainant was given the satchel at issue because it was the only satchel available at that time. Complainant claimed that on August 16, 2016, he told his first level supervisor that his son was killed in a shooting the night before and would not be coming to work that day. Complainant stated that the supervisor then responded, “what about the mail?” The supervisor denied making that remark. Regarding claim 2, M1 indicated that on September 6, 2016, Complainant was terminated during his probationary period because he failed to submit any documentation for his extended absence (three to four weeks absence since August 16, 2016) although he was asked to do so. Complainant filed the instant appeal. 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 (EEO MD-110), Chap. 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"). 2020004112 3 After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant was terminated during his probationary period because he failed to submit any documentation to support his extended absence. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds 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). 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 Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 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). 2020004112 4 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. 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. 2020004112 5 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 August 12, 2021 Date