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

Equal Employment Opportunity Commission

Apr 6, 2022

Appeal No. 2020005166 (E.E.O.C. Apr. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Caleb M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005166 Agency No. 4G-700-0231-19 DECISION On July 14, 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 June 11, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency’s Elmwood Station in New Orleans, Louisiana. On January 5, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), disability (multiple medical conditions), age (41), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 Section 501 of the Rehabilitation Act of 1973 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. 2 2020005166 1. On June 15, 2019, September 14, 2019, and November 26, 2019, Complainant was erroneously labeled as AWOL; 2. On June 15, 2019, August 22, 2019, September 14, 2019, and November 26, 2019, Complainant was not paid for the sick leave he requested; 3. On August 20, 2019, Complainant was subjected to an investigative interview and not provided a copy; and 4. On November 21, 2019, a street observation was conducted on Complainant while he was on his route. The Agency accepted the complaint for investigation. The investigation provided the following relevant facts. As alleged in claims 1 and 2, Complainant was charged Absent without Leave (AWOL) on September 14, 2019, November 21, 2019, and November 26, 2019. He asserted that he worked on June 15, 2019, and he had unscheduled leave on August 22, 2019. Investigative File [IF] at 177-78. Complainant asserted that he was placed on AWOL status because management refused to sign his leave slips. IF at 71. Complainant indicated that he made requests for sick leave and annual leave, however, he was not paid. IF at 75. The Manager, Customer Service (Manager) explained that based on applicable sections of the Employee and Labor Relations Manual, she charged Complainant with AWOL because he did not have leave available. IF at 94. Complainant’s first-line supervisor (Supervisor) also averred that Complainant did not have any leave. IF at 113. In claim 3, Complainant asserted that the management officials conducted an investigative interview and failed to provide him with the notes or copies of ring times in order for Complainant to fight a charge. IF at 79. According to Manager, investigative interview notes are the property of management for reference in any corrective action if warranted. IF at 102. The Agency did not provide the interview notes to Complainant. Supervisor averred that Complainant did not ask for the notes. IF at 117. On November 21, 2019, Supervisor conducted an Observation of Driving Practices on Complainant because he was observed sitting idle in his vehicle for 15 minutes or even 20 minutes before his lunch break time. IF at 118. According to Supervisor, she conducted street observations with any employee who sat idle in their vehicle. She asserted that all supervisors at every station conduct street observations. Id. Complainant believed that he was “intimidated” and “harassed” by Supervisor. IF at 221-25. 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). 3 2020005166 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. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted an Appeal Statement. 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 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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. 4 2020005166 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency has articulated legitimate non-discriminatory reasons for the actions alleged in claims 1 through 4. In claims 1 and 2, Manager charged Complainant with AWOL because he did not have approved leave on September 14, November 21, and November 26, 2019. Furthermore, the record indicated that Complainant had no leave to take. Therefore, the AWOL charge was not erroneous. Complainant worked on June 15, 2019, and was not charged AWOL for that date. As to claim 3, Supervisor noted that Complainant did not request the interview notes. IF at 117. Finally, regarding claim 4, Supervisor conducted an observation on Complainant because she had noticed him just sitting in his truck for 15-20 minutes. Manager averred indicating that the observation was consistent with applicable Agency procedures as Complainant had extensive stationary time and unauthorized overtime and penalty overtime without providing any substantiating reasons. According to her, Complainant failed to submit a PS Form 3996 for overtime requests and failed to contact management concerning his inability to complete his route in its projected time. IF at 103-4. As the Agency has met its burden of production, we next turn to Complainant to show pretext. We find no persuasive evidence of pretext. Complainant asserted that his protected bases were factors in the alleged management actions for various reasons. However, the record reflects that other employees, within and outside all of Complainant’s protected bases, were charged and coded AWOL for similar absences. See IF at 89, 229-30, 235-52. Complainant also failed to present evidence that he requested leave or that he had available leave that management refused to approve. Furthermore, we find that Complainant did not substantiate his assertions with any evidence. Therefore, his arguments, without more, fail to establish that the Agency’s reasons were pretext for discrimination. Harassment To establish a claim of 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 5 2020005166 Under the standards set forth in Harris, Complainant's claim of a hostile work environment must fail with regard to claims 1 through 4. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the alleged management actions were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 final 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. 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). 6 2020005166 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. 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 April 6, 2022 Date