[Redacted], Bart M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021000471 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2021000471 Hearing No. 420-2019-00122X Agency No. 6U-000-0033-17 DECISION On October 15, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 23, 2020 final action 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Field Sales Representative at the Agency’s Bessemer Post Office in Bessemer, Alabama. On December 18, 2017, Complainant filed the instant formal complaint. Complainant alleged that he was subjected to discriminatory harassment based on race (African-American) and disability (Major Depressive Disorder, Panic Disorder) 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. 2021000471 2 1. from March 2017 through July 2017, while Complainant worked from the Bessemer Post Office, he was not provided with the same tools, such as a phone, all-in-one printer and use of a car, as his co-workers; 2. on July 26, 2017, the Manager Post Office Operations asked him to leave the workroom floor and threatened to call the police if he refused to do so; 3. on or around July 27, 2017, despite an earlier approved accommodation to work from the Bessemer Post Office, he was instructed to return to the Birmingham office; and 4. on September 15, 2017, when he attempted to return to work, he was told he could not return until he was cleared to work with no restrictions.2 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, the AJ issued a decision by summary judgment in favor of the Agency finding no discrimination was established. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 2 Claim 4 was later amended to the instant formal complaint. 2021000471 3 Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To establish a claim of discriminatory hostile work 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 verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his discriminatory 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 a protected basis - in this case, race and/or disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that from March 2017 through July 2017, while Complainant worked from the Bessemer Post Office, he was not provided with the same tools, such as a phone, all-in-one printer and use of a car, as his co-workers were provided. The Manager, Bessemer Post Office (Caucasian) explained that based on a reasonable accommodation agreement, which was signed and agreed to by Complainant on March 17, 2017, Complainant’s work location was temporarily changed for 90 days from the Birmingham Post Office to the Bessemer Post Office effective March 20, 2017. He further stated that Complainant’s office at the Bessemer Post Office was a private office off the workroom floor. The Manager noted that Complainant worked independently. Further, the Manager asserted that Complainant had all the necessary tools and equipment at the Bessemer Post Office to allow him to perform his Field Sales Representative duties. Specifically, he stated that Complainant had a computer, Local Area Network (LAN) access, remote access for computer, an USPS issued cell phone and iPad, and access to a vehicle for customer appointments. Complainant asserted that he was not provided a land-line phone and a printer while working at the Bessemer Post Office. The Manager again reiterated that Complainant was issued a cell phone, and there was no established need for him to have a land-line telephone and an all-in-one printer. 2021000471 4 He stated that the Information Technology (IT) Department indicated that an additional land-line was not available due to the age of the facility and that the Agency was unable to add any additional telephone lines as the lines were to be upgraded to a new phone system. Further, the Manager asserted that Complainant had access to a USPS prime printer, but he wanted a color printer. The Manager stated that Complainant also had access to a color printer in the District Sales Office and he can pick up his color printing whenever he picks up his postal vehicle. The Manager noted that he also did not have a color printer in his office for his own use. Finally, the Manager acknowledged denying Complainant’s request for a postal vehicle to be parked at the Bessemer Post Office. The Manager stated that the USPS Sales Vehicle Policy mandates that all USPS vehicles be located at the work location on an employee’s PS Form 50 “Notification of Personnel Action.” The manager noted that Complainant’s PS Form did not indicate Complainant’s work location as the Bessemer Post Office. Moreover, the manager noted that Complainant was aware of the vehicle policy when he signed the April 28, 2017 Mandatory Stand-up Talk regarding the Government/Vehicle Policy. Regarding claim 2, Complainant alleged that on July 26, 2017, the Manager Post Office Operations (MPOO) asked him to leave the workroom floor and threatened to call the police if he refused to do so. The MPOO (mixed race) explained that on July 26, 2017, he initiated a conversation with Complainant who was standing near the supervisor’s desk. He stated that he asked Complainant to leave the workroom floor because he did not believe it looked good for managers to be standing around talking. He noted that Complainant became irritated, and stated that he was not going to move. Following a further exchange, the MPOO indicated that he would call the police to have Complainant physically removed if Complainant did not move on his own. The MPOO stated that it was his responsibility to make sure that employees remain productive. Regarding claim 3, Complainant claimed that on or around July 27, 2017, despite an earlier approved accommodation to work from the Bessemer Post Office, he was instructed to return to the Birmingham office. The Manager stated he had a prescheduled meeting with Human Resources concerning Complainant’s lack of performance during his reasonable accommodation assignment at the Bessemer Post Office. He noted that Complainant’s lack of performance was the deciding factor in Complainant being instructed to return to the Birmingham Office. In addition, the July 26, 2017 incident referenced above, was a factor in the decision. The District Manager, Alabama District (Caucasian) stated that during the relevant period Complainant did not report to her. She noted that the MPOO and the Manager informed her that Complainant was interrupting employees at the Bessemer Post Office and was not being managed by management because “he technically did not work for MPOO or [the] manager of Bessemer. So [Complainant] was better suited to work in his own work area at the main facility.” 2021000471 5 Regarding claim 4, Complainant claimed that on September 15, 2017, when he attempted to return to work, he was told he could not return until he was cleared to work with no restrictions. The Manager stated that all the documentation from Complainant’s physician indicated that Complainant should continue to work at the Bessemer Post Office, which was not an option. He further stated that Complainant “need to be released with no restrictions, because his temporary accommodation did not result in any improvement in his performance.” Furthermore, the manager stated that on November 15, 2017, Complainant provided Agency management updated medical documentation, and he returned to the Birmingham Office on November 16, 2017. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race or disability. As such, the AJ correctly determined that the evidence of record did not support Complainant’s claim of discriminatory harassment. We discern nothing in the present record reflecting that the Agency’s conduct reflected hostile or abusive conduct based on Complainant’s race or disability. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, 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. 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 2021000471 6 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. 2021000471 7 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 February 22, 2021 Date