[Redacted], Billy L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

May 2, 2022

Appeal No. 2022001795 (E.E.O.C. May. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001795 Agency No. 1B-007-0007-21 DECISION On February 9, 2022, 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 December 30, 2021, 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. BACKGROUND During the relevant time, Complainant worked as a mail handler at the Agency’s DMDU Catano Annex in Catano, Puerto Rico. Complainant held union duties in addition to his position as a mail handler. Record of Investigation (ROI) at 214. Complainant alleged that, on January 22, 2021, Acting Supervisor denied him union time. ROI at 212. Complainant said that, upon requesting for Acting Supervisor’s work form, Acting Supervisor began yelling at Complainant and making hand gestures in his face. ROI at 212. Complainant charged that Acting Supervisor went on to say that he “knows bad people in the streets who are on-call for him and all he needs to do is text them and they will wait outside the gate to hurt me.” ROI at 212. 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. 2022001795 2 Acting Supervisor recounted that he went to the Union Office to find Complainant because Complainant’s workstation was not yet operational, one hour after Complainant’s tour began. ROI at 250. Acting Supervisor stated that he did not threaten Complainant, rather Complainant threatened him, and Acting Supervisor replied to that threat. ROI at 250. Acting Supervisor then notified Agency inspectors as to the incident. ROI at 252. Complainant acknowledged that Agency policy requires that an investigation occur after a death threat, “which was not made.” ROI at 213. He alleged that Acting Supervisor coordinated everything with Agency police whom Complainant claimed, “[Acting Supervisor] knew…would be more than willing to proceed against me,” because his prior EEO activity was against Agency police. ROI at 213, 216. After that event, Complainant stated that on January 23, 2021, he arrived at work prior approximately one hour before his tour began so that he could finish pending union work. ROI at 214. He asserted that Acting Supervisor yelled at him to leave the plant. ROI at 214. An Agency police officer responded. ROI at 214, 261. Complainant further recounted that he attempted to explain the situation when Officer arrived, but then Officer yelled at him as well. ROI at 214. Acting Supervisor noted that Complainant was at the facility over three hours before his shift began. ROI at 252. Acting Supervisor reported that he was uncertain whether Complainant was allowed to be at the office at that time, so he called Manager, who advised Acting Supervisor to call Agency police. ROI at 253. Office responded. ROI at 254. Acting Supervisor did not recall Officer yelling at Complainant but did recollect Complainant daring Officer to step inside Union office and “get him out.” ROI at 254. Officer specified that, at one point, Complainant asked why he was yelling, and he raised his voice “letting [Complainant] know if I was yelling it would sound like this.” ROI at 261. On January 25, 2021, Complainant received a telephone call from Inspector. ROI at 217. Inspector asserted that her professional responsibilities include investigating allegations of threats and assaults by and against Agency employees. ROI at 267. Complainant recounted that Inspector stated Complainant was contacted due to the alleged death threat against Acting Supervisor. ROI at 217. Complainant argued that the rationale for contacting him was in error, because Acting Supervisor threatened him. ROI at 217. On March 8, 2021, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 22, 2021, Acting Supervisor yelled and physically threatened Complainant; 2. On January 23, 2021, Acting Supervisor screamed at Complainant to leave the facility and then Postal Police yelled at him; and 2022001795 3 3. On January 25, 2021, Inspector called Complainant’s house to talk about the January 2021 incident. 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). 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 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 instant appeal followed. Neither Complainant nor the Agency filed any appeal. ANALYSIS AND FINDINGS 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 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”). Disparate Treatment-Claims 2 and 3 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 a 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, without so finding, that Complainant has established a prima facie case of discrimination, we now turn to the Agency to provide a legitimate, non-discriminatory reason for its actions. We find that they have done so here. 2022001795 4 As to claim 2, Acting Supervisor did not know whether Complainant was allowed to be present at the facility, as Complainant was present over three hours before his start time. In response, Complainant has offered no evidence, outside of his own suppositions and speculation, that the Agency’s legitimate, nondiscriminatory reason was merely a pretext. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. As such, as to claim 2, the Commission cannot find that the Agency acted in a discriminatory manner. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120132159 (May 21, 2015) (affirming that supposition, without supporting evidence, is insufficient to prove discriminatory animus). Regarding claim 3, Inspector has the responsibility of investigating all threats made to or by Agency employees. The Commission finds that, as Inspector was investigating a threat allegedly made by Complainant to Acting Supervisor, the Agency offered a legitimate nondiscriminatory reason to contact Complainant. Complainant has offered no evidence of pretext with respect to claim 3. He, himself, acknowledged that he was contacted regarding the alleged threat. To the extent that Complainant argues that the identity of the threatening party, as expressed by Inspector, was in error, this is not demonstrative of discrimination. The Commission has found that mistake, without evidence of more, is not pretext of discrimination. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). As the Agency has provided a legitimate nondiscriminatory reason for both claims 1 and 2, and Complainant has not provided any evidence of pretext, the Commission cannot find that the Agency discriminated against Complainant. Retaliatory Harassment-Claims 1, 2, and 3 To ultimately prevail in on his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. Janeen S. v. Dep't of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). 2022001795 5 With regard to claims 2 and 3, Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Concerning claim 1, Complainant has not met his burden of proof as to whether the events in question happened at all. While Complainant asserted that Acting Supervisor threatened him, Acting Supervisor asserted the opposite. Complainant’s own identified witness did not remember any events from that day. As such, the evidence as to whether Complainant was threatened is, at best, in equipoise. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Even assuming the Commission found that the aforementioned events occurred, Complainant has not offered any evidence that the alleged events occurred due to his prior protected activity, outside of his own suppositions and assumptions. Therefore, with regard to claim 1, Complainant failed to meet the elements of retaliatory harassment. 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. 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. 2022001795 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. 2022001795 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 May 2, 2022 Date