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

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2021000710 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billie S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021000710 Hearing No. 550-2014-00315X Agency No. 1E-997-0001-14 DECISION On October 29, 2020, 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 September 29, 2020, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, M- 04, at the Agency’s Processing & Distribution Center facility in Anchorage, Alaska. On October 28, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (American), sex (male), religion (Jewish), color (White), age (58-59) and reprisal when: 1. On September 8, 2013, Complainant was charged with being AWOL; 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. 2021000710 2 2. On September 21, 2013, Complainant was given an investigative interview; 3. On September 27, 2013, Complainant was given a fraudulent PS Form 3971s to sign, and put on the restricted sick leave list; 4. On September 27, 2013, Complainant’s Jewish name and ancestry were insulted; 5. On October 9, 2013, Complainant was instructed not to call the absence call line and instead call the manager directly when calling in sick; 6. On November 8, 2013, Complainant was threatened with being charged with being AWOL; 7. On December 11, 2013, Complainant was instructed to stay in the rewrap area and get to work; and 8. On February 27, 2014, Complainant’s leave request, which had been approved the previous day, was disapproved. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 31, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 28, 2020. Specifically, the AJ found that Agency officials articulated legitimate nondiscriminatory reasons for their actions and that Complainant failed to show that such reasons were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2021000710 3 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. 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 for Complainant. We note initially that, with regards to claims 1 & 8, we find that Complainant has stated valid claims of disparate treatment. With regard to the remaining claims, we note that the Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We find that in claims 2 through 7, Complainant does not allege he incurred a present harm or loss and hence those claims do not state valid claims of disparate treatment but do state claims of harassment/hostile work environment and will be analyzed under that theory. Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. 2021000710 4 With regard to claim 1, Complainant’s supervisor on the date in question (S1: Filipino, Asian, male, Christian, brown, 38 years old) averred that Complainant: [W]as at the west dock conversing with another employee when he supposed [sic] to be at rewraps at that time. I approached him and gave him an instructions [sic] to separate any Fairbanks destination mail after he had rewrapped. He did not like what I instructed him to do, he said “it's not his job"[sic]. Then he claimed that he wanted to go home because he supposed [sic] to be on annual leave. I told him that, “you decided to come in and not take leave so if you leave you will be AWOL." [Complainant] left so I put him on AWOL for 5 hours and 99 min. S1 further averred that Complainant told him that: He talked to [another supervisor (S2: Caucasian, American, male, Lutheran, white, 59 years old)] before [S2] left for vacation. He said [S2] ok’d him to come to work when he pleased and canceled leave. . . I told him that when you decided to come in to work and clock in, you [sic] supposed to work [eight] hours unless you have arrangement [sic] of how many hours you want to work. With regard to claim 8, the Manager, Distribution Operations (MDO1: Caucasian, American, male, Protestant/Christian, white, 52 years old) averred that: I disapproved the leave based on the staffing needs during the Spring Break period and it being an "incidental" annual leave request. The complainant listed it as "Non-Prime Time Annual Leave", but a review of the leave calendar indicated that he was not signed up, nor was there a vacant slot. Therefore, I disapproved the leave based on this and the LMOU and NPMHA Contract Chapter 10.5C. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to claim 1, Complainant averred that S1: [S]tates that I took offense to instructions regarding the separation of the mail and said I was leaving, when in fact I told him that I would do the best I could. I didn't leave until he yelled "I am giving you understandable instruction" and" I'm gonna get a white guy to be a witness." . . . When [S1] returned with Mail Handler Assistant [_________] (name omitted) (his easy to fire white guy witness) I told [S1] I didn't have to take his harassment, that I'd warned him before to stop harassing me and that I was scheduled to be on leave anyway so I was leaving. [S1]’s meltdown continued, he told me that I had to work 8 hours or he would 2021000710 5 mark me AWOL. He said "I'll fix you!" and harassed me through the plant as I tried to walk out until I told him I was sick of his constant harassment and that I was filing an EEO Complaint. When I said that [S1] relented and I dialed [S2], who didn't pick up at first but called back a minute later. I had checked the posted schedule to be sure I was scheduled for leave and was. [S2] told me that he was doing something in Seward. After I reported [S1]’s meltdown [S2] told me "it would probably be better if I just went home" and I clocked out 10 minutes later at 14:30 one hour before my regular scheduled start time. We note that while Complainant disagrees with S1’s version of events in minor details, essentially Complainant’s response affirms S1’s testimony that he told Complainant that if he left S1 would put him down as being AWOL, and that Complainant nevertheless left the facility. The record shows that S2 averred that he did receive a telephone call from Complainant on the date in question and that after Complainant told him that he was in a confrontation with S1, S2 told him he might as well go home but according to S2’s affidavit he was not fully aware of the situation at the time and assumed from Complainant’s comments that Complainant had already left the facility. In any event, even assuming Complainant has legitimate grounds to believe S2 had given him permission to leave, Complainant has not shown that S1’s articulated reason for his action was a pretext or otherwise shown that S1 harbored discriminatory animus towards Complainant’s protected bases. With regard to claim 8, Complainant averred that: I reported on the misdated PS Form 2564-A that after [S1] approved my leave request on 2/26/14 it was then later denied on 2/27/14 by [the] In Plant Support Manager [(IPSM: Caucasian, American, male, no claimed religion, white, 52 years old) and [MDO1]. As I had missed 2/27/14 for a FMLA medical appointment [S1] informed me on 2/28/14 that my leave had been denied because I had submitted a fraudulent 3971 as I had indicated it was non-prime leave. It didn't matter that there were available open slots on the Non-Prime Annual Leave Calendar for that period, i.e., [______ and ______ (names omitted)] were not scheduled to work, [________ and ________ (names omitted)] did not take leave. (3971s and non-prime annual leave calendar attached). There is no doubt in my mind that if any of the Craft Employees listed in this Complaint had requested non-prime leave when open or unused slots were available on the leave calendar, they would have received it. Complainant submitted a copy of the Agency PS Form 3971 - Request for or Notification of Absence - showing Complainant’s request being submitted on February 26, 2014 and denied the following day by MDO1, with the reason for the disapproval listed as “Leave calendar full, needs of the service,” which is consistent with MDO1’s testimony. Complainant further provided a copy of a document entitled Non-Prime Time Annual Leave showing various dates and names. For the time period 2/22/14 - 2/28/14 there are three names listed and nothing more. 2021000710 6 No conclusions can be drawn from such evidence and it is insufficient to contradict MDO1’s claim that no vacant leave slots were available for February 27, 2014, or to establish that MDO1’s articulated reason for denying leave is a pretext to mask discrimination or reprisal or otherwise show that the Agency’s actions were motivated by discriminatory animus or retaliatory motive. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment when he was charged with being AWOL on September 8, 2013 and/or when he was denied leave on February 27, 2014, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency with regard to those actions were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: on September 21, 2013, he was given an investigative interview; on September 27, 2013, he was given a fraudulent PS Form 3971s to sign, and put on the restricted sick leave list; on September 27, 2013, his Jewish name and ancestry were insulted; on October 9, 2013, he was instructed not to call the absence call line and instead call the manager directly when calling in sick; on November 8, 2013, he was threatened with being charged with being AWOL; and on December 11, 2013, he was instructed to stay in the rewrap area and get to work. In addition, Complainant alleges that on September 8, 2013, S1 yelled at him saying “I'm gonna get a white guy to be a witness." In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2021000710 7 Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that the actions complained of were insufficiently severe and/or pervasive to alter the terms and conditions of Complainant’s employment and therefore do not constitute harassment under the law. In addition, in only two of the actions did Complainant describe behavior that either involved or was based on his protected bases. With regard to his Jewish name and ancestry being insulted, we note specifically that Complainant alleges that he was talking to another Manager of Distribution Operations (MDO2: mixed race, USA, male, Jewish, Afro-American/White/Indian, 51 years old) and a Supervisor, Distribution Operations (SDO: African-American, USA, male, Baptist, black, 60 years old) and he told them that he was “prejudiced against prejudism [sic]” whereupon MDO2 responded “I’m not black, I’m a white guy, I’m a Jew.” The other comment involved S1 saying to Complainant “I’m gonna get a white guy to be a witness.” Given that Complainant described his religion as Jewish and his skin color as white, we find that Complainant has not shown how such statements contributed to an intimidating, hostile, or offensive work environment based on his skin color or religion. Finally, with regards to Complainant’s contention that the Agency identified the wrong issues in his complaint, we note that Complainant declined the opportunity to specify the nature of his various claims in his Formal complaint, writing broadly that “this complaint describes a pattern of discriminatory behavior toward me including threats, personnel actions based on falsified records and highlight the Agency’s persistent efforts to evade their responsibilities under 29 C.F.R. 1614, a situation I have endured since 1996,” without identifying a single incident of discrimination or harassment. Because Complainant did not himself lay out the exact nature of his claims in his Formal complaint, the Agency looked to the Counselor’s report to discern just what the claims involved. Following a review of the Counselor’s report we find that the Agency essentially identified the correct issues. To the extent that the Agency failed to identify the “I’m gonna get a white guy to be a witness” comment as a specific incident of alleged harassment, we find such an omission to be harmless error given that, even assuming an Agency investigation were to establish that the action occurred exactly as described by Complainant, we have found that all the actions taken together are insufficiently severe and/or pervasive to alter the terms and conditions of Complainant’s employment. 2021000710 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the final order. 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 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. 2021000710 9 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. 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 14, 2022 Date