[Redacted], Christopher M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020001609 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020001609 Hearing No. 480-2018-00735X Agency No. 1F914000318 DECISION On December 5, 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 November 6, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Maintenance Operations (SMO), EAS-17, at the Agency’s facility in Van Nuys, California. He previously had worked at the Agency’s Processing and Distribution Center (P&DC) in Santa Clarita, California. On March 20, 2018, Complainant filed an EEO complaint alleging the Agency subjected him to discrimination and a hostile work environment on the basis of race (African-American) 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. 2020001609 2 1) On or about August 23, 2016, he was not given the opportunity for the promotion to MM that was awarded to the Manager Maintenance-Lead (MM1); 2) On or about August 24, 2016, he requested a detail as Acting MMO but did not receive a response, and on January 24, 2017, he became aware that his request had been overlooked and the detail was awarded to a junior Supervisor (MMO1); 3) On or about October 24, 2016, he was not selected for the position of Maintenance Manager of the Los Angeles International Service Center; 4) On or about February 1, 2017, he notified Acting MMO1 that he would like to coordinate daily activities, problems, and concerns with him, but he received no response from MMO1; 5) Around March 1, 2017, he informed MM1 of his desire for upward mobility or to return to the Santa Clarita P&DC if he was unable to get the assistance and support that he needed at Van Nuys, but his request was ignored; 6) On or about April 14, 2017, he was notified that his phone interview for the Maintenance Manager position at the Los Angeles P&DC had to be rescheduled, but he never received any further notification of the rescheduled interview; 7) On May 8, 2017, MM1 refused to release him for a detail as a Supervisor in Mail Processing; 8) On October 24, 2017, he was interviewed for the position of MMO (Position No: NB10145276), and subsequently, on November 17, 2017, he learned that he was not selected for the position; 9) On October 24, 2017, he was interviewed for the position of MMO (Position No: NB10144521), and subsequently, on November 17, 2017, he learned that he was not selected for the position; 10) On or about November 18, 2017, he sent an email inquiring what would be required to correct any deficiencies found in his application, and despite being told he would receive an Individual Development Plan (IDP), he has not received one; 11) On November 20, 2017, Complainant sent an email requesting an update on his multiple Detail requests, and requested a meeting regarding his career development and lack of opportunities, but he did not receive a response to his email; and 2020001609 3 12) On or about November 27, 2017, he became aware that he was bypassed for the position of MMO while he was out of the office. 2 The Manager Maintenance-Lead (MM1), EAS-25, in Santa Clarita had been promoted to the position on August 23, 2016. Complainant had not applied to this position but believed he would have been promoted if he had been given a Manager Maintenance Operations (MMO) detail in 2015. Complainant’s first-level supervisor (S1), was an MMO in Santa Clarita. On or around August 24, 2016, Complainant emailed a request to MM1 to be detailed to either of two vacant MMO positions in Santa Clarita. Complainant believed he was qualified to be detailed as Acting MMO since he was currently a SMO and was performing the duties and responsibilities of an Acting MMO at the Van Nuys location. Complainant averred S1 and MM1 did not select him to be detailed and had sent him to work at the Van Nuys facility to isolate Complainant from other supervisors. On February 1, 2017, Complainant emailed the Acting MMO in Santa Clarita, stating that since MMO1 was the Acting MMO for Tour 2, that Complainant would be coordinating daily activities and concerns he had at Van Nuys to MMO1. Complainant stated he would forward discipline issues and staffing concerns to MMO1 so that MMO1 could make the appropriate decision. Complainant never received a response to his email. On or around March 1, 2017, Complainant emailed MM1 to express his desire for career advancement and development, and if he could not get the support he needed at Van Nuys, then he wanted to return to Santa Clarita. Complainant later spoke to MM1 on the phone and said MM1 told Complainant he needed to do more work at Van Nuys and that MM1 was displeased at Complainant’s request for detail or higher-level compensation. MM1 met with Complainant at the Van Nuys facility to discuss the continued lack of activity on an assigned project and that the project needed to get back on track before the Agency incurred financial liability for the lack of follow through. Complainant became defensive and blamed others for the project not moving forward. MM1 stated Complainant expressed concern that MM1’s dissatisfaction with Complainant’s work would affect his future and Complainant requested that he be taken off the project and returned to Santa Clarita. MM1 asked Complainant to stick with the project at Van Nuys and to include MM1 in future conversations with others involved in the project. MM1 expressed that Complainant agreed to comply with MM1’s directions. 2 The record reveals that Complainant made initial EEO Counselor contact on December 2, 2017. As a result, the Agency accepted only the claims beginning with claim (8) as timely-raised discrete claims pursuant to 29 C.F.R. § 1614.105(a)(1). The remaining claims can be considered as background evidence in support of Complainant’s overall hostile work environment claim. Complainant raised no challenges regarding this matter. 2020001609 4 Complainant applied for a MM position at the Los Angeles P&DC because the current Manager was set to retire. However, on April 14, 2017, he was notified that his phone interview for the position had to be rescheduled because the interviewer was unavailable, but he never received any further notification to finalize rescheduling the interview. Complainant averred MM1 denied him advancement opportunities, training, higher-level details and career development because of Complainant’s race. Complainant believed this was why, on May 8, 2017, MM1 refused to release him for a detail as a Supervisor in Mail Processing. Additionally, MM1 was the selecting official for two MMO vacancies in Santa Clarita. On October 24, 2017, MM1 interviewed Complainant for both MMO job announcements and on November 17, 2017, MM1 emailed Complainant informing him he had not been selected for either MMO position. In a series of emails over several days, Complainant inquired why he was not selected and how he could correct any deficiencies in his application. MM1 suggested they get together with S1 to develop an Individual Development Plan (IDP) for Complainant, who responded that an IDP should have been developed years ago since he had been waiting for so long for career advancement, but had also felt he did not need any plan given the delay. Complainant detailed the frustrations, roadblocks and accomplishments he experienced after he was promoted to Supervisor and sent to Van Nuys-FSS Maintenance, Tour 2. MM1 reminded Complainant the IDP would also help him develop in his current position. Complainant responded on November 20, 2017, dissatisfied with the continual non-selections including the 2016 Acting MMO detail, and every MM and MMO application he had submitted. He stated his detail request to Mail Processing had been put on hold when he interviewed with MM1 for the MMO position, and he now required a meeting with MM1 and the Senior Plant Manager to resolve the conflict he faced with the lack of career development opportunities in the Maintenance department. On November 27, 2017, MM1 formally announced MMO1 and another SMO had been promoted from SMO EAS-17 to MMO, EAS-23 Tour 3 and MMO EAS- 23, Tour 1, respectively. MM1 testified that an MMO assignment was a higher-level leadership position requiring a self- starter who led by example, and most importantly required a team-player that could effectively manage the collaborative efforts of a tour. An individual needed to have shown through past performance the qualities of a good leader prior to be offered the detail position. MM1 explained Complainant’s past behavior led MM1 to perceive Complainant was not a team player and was not someone he could rely upon to detail into the MMO position. MM1 stated Complainant was argumentative and would come across as rude or disrespectful to his peers and subordinates. He was unresponsive to constructive criticism, tending to blame others for his failures. MM1 found Complainant was not perceptive to the big picture, resulting in MM1 or Complainant’s higher-level managers needing to point out high profile issues such as facility condition or machine performance. MM1 stated Complainant’s assignment as a day shift supervisor at the remote Van Nuys facility actually afforded Complainant the opportunity to demonstrate and grow his skills because he was exposed to significantly more manager level items than a Santa Clarita supervisor, such as being assigned to manage a large project. 2020001609 5 MM1 explained his perception of Complainant’s behavior and suitability for the detail was Complainant’s history of at least three instances known to MM1 where Complainant was perceived by others as combative or disrespectful in the workplace, such as allegedly making threats against a subordinate employee at the Santa Clarita location; and incidents with a peer supervisor from operations at the Santa Clarita location and with a subordinate employee at Van Nuys. Complainant received subsequent training on dignity and respect via his enrollment in multiple online learning courses in addition to an Employee Assistance Program (EAP) referral. S1 further explained in his affidavit that Complainant had engaged in a verbal altercation with a craft employee in 2015, which was investigated. After Complainant was assigned training classes, a decision was received from Headquarters mandating Complainant was not to work at Santa Clarita, P&DC. However, no further action was needed because Complainant had already been assigned to Van Nuys for some time prior to the decision. Regarding the interview for the two MMO positions in claims (8) and (9) (Position No: NB10145276 and Position No: NB10144521), MM1’s affidavit went into detailed explanations comparing the selectees qualifications in comparison to Complainant, whose statements were supported by the details in the selectees’ and Complainant’s applications.3 MM1, who conducted the interviews and was the selecting official, gave Selectee-1 a total score of 23 and Selectee-2 a total score of 18 on the Requirement-By-Applicant Matrix compared to Complainant’s total score of 12. Further, MM1 pointed to Selectee-1’s superior knowledge of the collective bargaining agreement, demonstrated operational experience and initiative, and her ability to make data-driven decisions as reasons for her selection. MM2 added that Selectee-2’s ability to manage preventive and corrective maintenance, to manage the work of others, and to evaluate maintenance work along with his well-rounded technical background and problem- solving qualities made him the better candidate as well. Regarding claims (10) and (11), S1 explained that he did not make any decisions regarding MMO promotions or details. He explained an IDP is a three-step process available to all online. It is initiated by the employee and once a self-assessment is completed, the next higher-level manager gives input and suggestions to develop and improve the employee’s weak categories and discusses planning with the employee. He could not offer an IDP to Complainant because Complainant did not complete the first step in the process, the self-assessment. S1 stated he offered to help Complainant by providing him with ideas and ways he could improve his supervisory skills, however, he found Complainant was focused on obtaining a promotion but not his efforts on improving his skills. 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 EEOC Administrative Judge (AJ). Complainant initially requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 3 MM1 explained that these two positions were posted at the same time and are also the positions at issue in claim (12). 2020001609 6 The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS 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 lawâ€). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination, the Commission finds that the Agency articulated legitimate, non-discriminatory reasons for its actions. As discussed above, the only timely-raised discrete acts at issue are claims (8) - (12). Regarding the three non-selections in claims (8), (9), and (12), all the Selectees had prior MMO experience. The information in Selectee-1’s and Selectee-2’s applications supported MM1’s statements regarding their qualifications for the MMO positions and comparison to Complainant’s application and experience. With regard to claims (10) and (11), management officials confirmed that the IDP process was a three-step process which began with an employee initiating an assessment online. An IDP was never developed for Complainant because he did not complete the first step of the process and appeared to be frustrated that no one had set one up for him. 2020001609 7 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). With respect to his non-selection claims, one way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his non-selection claim. Regarding his non-selection claims, the Commission finds that Complainant failed to show that his qualifications for the positions at issue were plainly superior to those of the selectees. In this case, the selectees had attributes that justified their selections, and the selection official affirmed that he believed the selectees were better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Commission finds no persuasive evidence that Complainant's protected class was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.†Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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. 2020001609 8 The Commission finds that the Complainant failed to show he was subjected to conduct so severe or so pervasive that a “reasonable person†in Complainant's position would have found the conduct to be hostile or abusive. Even assuming arguendo 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 animus. As discussed above, the record reflects that the totality of all of the incidents was more likely the result of routine supervision and general workplace disputes and tribulations. We note that, the Senior Plant Manager’s stated he met with Complainant on January 25, 2018, because Complainant’s former supervisor had reached out to him informing him that Complainant was not comfortable with the relationship and communication between him and MM1. The Senior Plant Manager stated Complainant expressed his concerns about his lack of career advancement. They went over the different situations and altercations Complainant had been involved in and the Senior Plant Manager explained to Complainant that his conduct with others made it difficult to consider him for upward mobility. Complainant responded saying he did not think personality conflicts or his issues with other employees should have an impact on a promotion. S1 and MM1 both stated they had spoken with Complainant and had offered suggestions to improve in his current role as supervisor, however, Complainant has focused on his career advancement instead of career development. There is no evidence aside from conclusory statements that Complainant’s protected basis was the reason behind the Agency’s actions. As a result, the Commission finds Complainant has not shown he was subjected to a hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because a preponderance of the record evidence does not establish that discrimination occurred. 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. 2020001609 9 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. 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. 2020001609 10 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 August 9, 2021 Date Copy with citationCopy as parenthetical citation