[Redacted], Barry G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020000355 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barry G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020000355 Agency No. 4E-800-0100-17 DECISION On August 23, 2019, 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 August 13, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant established that the Agency subjected him to disparate treatment discrimination and a hostile work environment based on reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Boulder-Valmont Station (BVS) in Boulder, Colorado. On August 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2020000355 2 1. On May 10, 2017, Complainant was instructed to deliver parcels, which violated his medical restrictions; 2. On May 10, 2017, Complainant was subjected to a hostile work environment when he was confronted by three management officials; 3. On June 20, 2017, Complainant was physically attacked by the Postmaster; and 4. On June 21, 2017, and ongoing, Complainant was placed in an Emergency Off Duty Status. 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant failed to establish a prima facie case of disparate treatment because he did not show that a similarly situated individual outside of his protected group was treated more favorably under similar circumstances. The Agency went on to determine that even assuming, arguendo, that Complainant established a prima face of discrimination based on reprisal, management officials articulated legitimate, nondiscriminatory explanations for their actions. Regarding claim 1, management officials asserted that the instruction to deliver parcels did not violate Complainant’s eight-hour workday restriction. Management officials added that Complainant finished his route early and had no other work, so it was appropriate that his supervisor asked him to perform a duty within his job description. As for claims 3 and 4, the Postmaster explained that Complainant assaulted him, and witnesses corroborated his statement. The Agency concluded that because Complainant had been the clear aggressor, it was appropriate to place him in Emergency Off Duty Status. With respect to pretext, the Agency found that the evidence of record did not support a finding that the explanations provided by management officials were untrue or related to Complainant’s prior EEO activity. The Agency further determined that Complainant failed to establish hostile work environment harassment on his claims because the record did not evince that management subjected Complainant to personal slurs, denigrating or insulting verbal or physical conduct, or vitriol or demeaning language. Finally, the Agency concluded that there was no basis to impute liability to the Agency. 2020000355 3 CONTENTIONS ON APPEAL On appeal, Complainant submits documentation indicating that he filed a civil action in the District Court for the District of Colorado on August 13, 2018.2 The Agency did not submit a response. 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”). ANALYSIS AND FINDINGS 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to 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 Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). 2 Complainant’s complaint was dismissed without prejudice on October 3, 2019, for failure to serve the Agency. 2020000355 4 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for protected EEO activity, we find that the management officials articulated legitimate, nondiscriminatory reasons for their actions. Regarding the claim that Complainant was instructed to deliver parcels outside of his medical restrictions, the Postmaster denied that the request to deliver parcels violated Complainant’s eight-hour restriction. ROI at 156. He stated that Complainant finished 45 minutes early and had nothing to do, so Complainant’s supervisor asked Complainant to deliver packages instead of doing nothing. Id. The Postmaster affirmed that other carriers were asked to go out on the same day. Id. Complainant’s supervisor added that she ultimately tried to inform Complainant that he did not have to take packages out and that she had no intention of going against his medical restrictions, however, Complainant would not listen. Id. at 175. With respect to Complainant’s allegation that he was physically attacked and subsequently placed on Emergency Off Duty Status, the record does not support Complainant’s allegations regarding the details of the altercation. Specifically, the record includes a report from the Boulder Police Department, which indicates that Complainant received a citation for committing third degree assault against the Postmaster. ROI at 46-55. The Postmaster affirmed that Complainant was not assaulted as he alleged, and that Complainant had lunged at him and tried to “bull” him over. Id. at 160-161. A witness statement, dated June 20, 2017, indicated that Complainant “tucked his head to his shoulder and lunged into [the Postmaster] and threw himself onto the floor and then screamed that the Postmaster shoved him.” Id. at 184. The statement went on to note that the Postmaster did not initiate contact at any time. Id. As for Complainant’s subsequent placement in Emergency Placement, the record indicates that management officials provided Complainant with a notice that he was placed in off duty status because he had demonstrated actions that were injurious to himself or others following the assault incident with the Postmaster. Id. at 226. After a careful review of the signed, sworn statements provided by the witnesses, we do not find any evidence showing that the managers’ reasons are not worthy of credence. Therefore, we find that Complainant has not shown pretext for discrimination, and he has not proven by a preponderance of the evidence that the Agency discriminated against him in reprisal for his protected EEO activity. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020000355 5 Therefore, 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. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that the Postmaster, a Manager of Customer Services, and a Supervisor of Customer services confronted him, screamed at him, and threatened him with removal in reprisal for his prior protected activity. However, Complainant has not shown that he was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. We further find that the complained of conduct did not have the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, management testified that Complainant refused to take parcels out when asked and management officials requested that he calm down when he became upset. ROI at 158-159, 169, 174-176. Other carriers had been asked to return to the street when they returned early as well and there were several parcels that needed to be delivered. Id. Accordingly, we find that the Agency did not subject Complainant to a hostile work environment in reprisal for his protected EEO activity. 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 decision finding that Complainant was not discriminated against, nor harassed, as alleged. 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. 2020000355 6 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. 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. 2020000355 7 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 March 24, 2021 Date