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

Equal Employment Opportunity Commission

Apr 6, 2021

Appeal No. 2020004041 (E.E.O.C. Apr. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Claude S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Request No. 2021000783 Appeal No. 2020004041 Hearing Nos. 551-2015-00142X, 551-2017-00092X Agency Nos.IE-981-0002-15, 1E-981-0006-17 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Claude S. vs. U.S. Postal Service, EEOC Appeal No. 2020004041 (Oct. 13, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Seattle Discovery Distribution Center - South located in Kent, Washington. On January 15, 2015 and February 14, 2017, Complainant filed two formal EEO complaints which consisted of the following issues. 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. 2021000783 2 Complaint 1 (Agency No. 1E-981-0002-15; Hearing No. 551-2015-00142X) Whether Complainant has subjected to discriminatory harassment based on race (African- American), age (over 40), disability (service-connected ankle, knee, and back impairments), and in reprisal for prior protected EEO activity2 when: 1. on various dates since August 24, 2014, Complainant had been harassed by a co-worker (CW1); and 2. on October 20, 2014, Complainant was subjected to an investigative interview, which culminated in notice of a seven-day suspension dated December 13, 2014. Complaint 2 (Agency No. 1E-981-0006-17; Hearing No. 551-2017-00092X) Whether Complainant was discriminated against based on race, color, age, and in reprisal for prior protected EEO activity when: 3. on September 30, 2016, Complainant received a Letter of Warning for Unsatisfactory/Irregular Attendance, and was threatened with more severe discipline; and 4. in January or February 2017, Complainant was required to give notice prior to any medical appointment which might result in his being unable to work his next shift. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing for both complaints. The assigned AJ (“AJ1”) consolidated the complaints but assigned each complaint a separate hearing number. On September 14, 2018, the Agency submitted a motion for a decision without a hearing and Complainant filed a response on November 5, 2018. However, before ruling on the motion, AJ1 retired. On April 21, 2020, Complainant’s complaints were transferred to another AJ (“AJ2”), who requested that the parties email her all pleadings previously submitted as she indicated that not all the pleadings had been updated in the hearings unit’s electronic records management system. On April 26, 2020, Complainant emailed AJ2, by attachments and Adobe link, pleadings listed as Exhibits 1 - 6, which also included Complainant’s previously submitted evidence in opposition to the Agency’s motion for a decision without a hearing. AJ2 confirmed via email that she received and was able to download all pleadings Complainant submitted. 2 Complainant testified that he served as a union steward from 2005 until September 2014 when the union president (CW1) fired him from his steward position. While in this position, Complainant stated that he had represented minority and disabled employees on discrimination issues. 2021000783 3 On May 28, 2020, AJ2 issued a decision by summary judgment in favor of the Agency. In the decision, AJ2 acknowledged that the record included the Agency’s motion for a decision without a hearing as well as Complainant’s response to the motion. AJ2 determined that the record was fully developed. On June 2, 2020, the Agency issued a final order adopting AJ2’s conclusion that the evidence of record did not establish Complainant was subjected to discrimination or unlawful retaliation as alleged. Complainant appealed. In EEOC Appeal No. 2020004041, the decision affirmed AJ2’s decision. In the instant request for reconsideration, Complainant, through counsel, argues that AJ2’s decision failed to include any explicit consideration, citation, or mention of the pleading documents he submitted in November 2018 and again in April 2020. Complainant further argues that on June 29, 2020, he filed an emergency motion notifying both the Agency and AJ2 that his evidence was not discussed in AJ2’s decision, and requesting that AJ2 take the case back under review if she could not verify that his evidence had been reviewed. Ultimately, Complainant asserts that AJ2 did not rule on the motion because the Agency had already issued a final order, resulting in AJ2 asserting she no longer had jurisdiction over the matter. As an initial matter, we emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. However, given Complainant’s arguments regarding the completeness of the evidentiary record below we will again conduct a thorough review of AJ2’s determination that a decision by summary judgment was appropriate in this matter. ANALYSIS AND FINDINGS Preliminary Matter - Complainant’s Submissions As an initial matter, we address Complainant’s assertion that AJ2 failed to review or consider evidence Complainant submitted in response to the Agency’s motion for summary judgment. We note that Complainant acknowledges, on appeal, that AJ2 provided written confirmation that she received and was able to open the documents Complainant submitted before issuing her decision. Additionally, our administrative review of EEOC’s electronic record of the hearing process in this matter includes both the Agency’s motion for summary judgment and Complainant’s oppositional response. Although AJ2 did not specifically cite or reference this information in her decision, we find that this omission alone is not sufficient to demonstrate that AJ2 neither reviewed nor considered Complainant’s evidence before issuing her decision. 2021000783 4 Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. While Complainant generally asserts on appeal that there were material facts in dispute, he has not pointed with adequate specificity to particular evidence in the investigative file or produced other evidence that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment: Claims 2 through 4 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 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. See Texas Department of Community Affairs 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 Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of 2021000783 5 Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that he sustained service-connected injuries to his ankle, knee, and back which were diagnosed in July 1995. Complainant explained that these injuries were permanent, and he notified his supervisors of his injuries as early as August 1997, when he began working at the Agency. Complainant further explained that he can complete all the duties of his position with accommodation - namely light duty with intermittent leave. Based on this evidence, we presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. Our independent review of the record indicates that AJ2 correctly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Claim 2 - Investigative Interview and 7-day suspension Complainant testified in his declaration that he had a physical altercation with CW1 (Caucasian male) on October 18, 2014, and was punched twice in the face by CW1. Complainant further testified that he was worried that management would blame him for the altercation and noted that he was subjected to an investigative interview following the incident. However, Complainant explained that he was not allowed to provide a written statement. Rather, another person present in the interview transcribed Complainant’s account of the incident and he was subsequently issued a 7-day suspension. The record reflects that management responded to the altercation, separated Complainant and CW1 from each other, called the police, and conducted an internal investigation into the matter by interviewing Complainant, CW1, and other witnesses present. Witness testimony revealed that Complainant glared at CW1, and CW1 responded by approaching Complainant. Witness testimony further revealed that CW1 punched Complainant twice in the face and Complainant scratched CW1’s neck leaving visible scars. As already noted, Complainant was also interviewed about the incident, as was CW1. A copy of the 7-day suspension notice indicates that Complainant was charged with failure to follow instructions. The notice explained that Complainant had previously been instructed not to have any interactions with CW1. The notice further explained that Complainant had previously complained about CW1 and had previously stated that he was “fearful” of CW1. The notice stated that Complainant, however, stared and glared at CW1 on October 18, 2014, and made no effort to avoid contact when CW1 approached him and began to engage in conversation. The notice indicated that Complainant “stood his ground,” did not walk away when CW1 approached, and scratched CW1’s neck while attempting to push CW1 away. The notice acknowledged that witness testimony indicated that CW1 was the “aggressor,” but the notice indicated that CW1 likely would not have responded the manner in which he did if Complainant had not continued to engage with him. 2021000783 6 The record also indicates that Complainant’s 7-day suspension was subsequently reduced to a Letter of Warning through the grievance process. The record also indicates that management issued CW1 a removal notice for his part in the incident, issuing more serious disciplinary action because CW1 was deemed the primary aggressor. CW1’s disciplinary action was later reduced to a 14-day suspension through the grievance process. Complainant has failed to prove, by a preponderance of the evidence, that the proffered reasons for the disputed disciplinary action was a pretext for unlawful discrimination based on Complainant’s race, color, age, disability, or prior protected EEO activity. The undisputed evidence shows that the white employee involved in the incident was also disciplined by management and, in fact, received harsher discipline because management determine he was, as asserted by Complainant, the primary aggressor. Clam 3 - Letter of Warning Complainant explained that his service-connected disability requires that he receive ongoing treatment and occasionally this treatment results in “painful soreness and aggregation of the symptoms of [his] disability, causing [him] to be unable to work his next shift.” Complainant asserted that he followed Agency procedure and would call in absent on the 1-800 number and he provided medical documentation. Complainant noted that the five absences addressed in the Letter of Warning (LOW) were all related to absences the day after medical treatment for his service-connected disabilities or symptoms. A copy of the September 30, 2016 LOW indicates that Complainant was charged with unsatisfactory/irregular attendance. Specifically, Complainant had five unscheduled absences. The Distribution Operations Supervisor (DOS) testified that he issued the LOW under the Agency’s no-fault attendance policy because Complainant had accumulated forty hours of unscheduled absences and had repeatedly failed to get his Family and Medical Leave Act (FMLA) status approved. Complainant argues that it was unfair that he was being asked to predict when he would be adversely affected by his medical treatments. However, the employment discrimination statutes do not serve as shields against harsh treatment at the workplace. They only protect when that harshness is directed at an employee because of his or her protected bases. Complainant has not proven the letter of warning was issued as a result of his protected bases or retaliatory animus. Complainant stated that in his role as a union steward, he was aware of a number of other white employees who he believed were treated more favorably with regard to unscheduled absences related to medical conditions. It was unclear from his written statement, however, the circumstances of these employees’ absences from work, the time period involved, or whether or not the same supervisors were involved. Claim 4 - Advanced Notice for Medical Appointments 2021000783 7 The DOS explained that Complainant’s supervisor (S1) required all employees to submit leave requests in advance whenever possible. The DOS further explained that Complainant was under the impression that his service-connected injuries allowed him to call in sick and provide notification via the call-in process in order for his leave to be documented as scheduled leave. However, S1 explained that every employee was required to provide a form 3971 leave request and give advanced notice about upcoming doctor visits. Consequently, S1 denied that Complainant’s protected bases factored in his decision to request that Complainant submit advanced notice for medical appointments. Again, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, color, age, disability, or prior protected EEO activity. Harassment - Claim 1 To establish a claim of discriminatory 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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, his race, age, disability, or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our independent review of the record supports that AJ2 correctly determined that Complainant was not subjected to discriminatory harassment as alleged. The record indicates that CW1’s actions toward Complainant were unrelated to Complainant’s protected basis. The evidence clearly shows that CW’s actions stemmed from personal disagreements between Complainant and CW1 regarding union duties. Both Complainant and CW1 ran for the position of union president, but CW1 prevailed in the November 2013 election (presidency effective January 1, 2014). However, both CW1 and Complainant had agreed that whoever won the election would appoint the other as vice-president. Following the election, Complainant and CW1 had a disagreement in December 2013, on whether light-duty employee position bids should be taken away without any formal accommodation or removal process if the employee could not perform the duties. 2021000783 8 Complainant argued that the position bids should not be removed, while CW1 argued that they should. CW1 testified that this disagreement caused him to rethink his decision to appoint Complainant as vice-president because, in accordance with the union’s constitution, stewards were to be on the “same page” as the union president regarding policy matters. CW1 explained that he would not have a vice-president who would directly go against the position of the president. Consequently, CW1 informed Complainant that he would decertify Complainant as a steward if he opposed his policy decisions as union president, and CW1 testified that Complainant responded that he had a right to be a steward and if CW1 removed him, he would “take this f-king union down.” Ultimately, Complainant was not chosen for the vice-president position during the January 15, 2014 executive union board meeting. Complainant also acknowledged that his interaction with CW1 changed following the December 2013 dispute. Complainant stated that “after [the December 2013] dispute, [CW1] and management became more hostile towards [him].” Complainant alleged that CW1 made statements that “light-duty employees were lazy,”3 and Complainant accused CW1 of “repeatedly” increasing his workload in June 2014 by leaving unfinished work at a machine they were both assigned to work. Complainant noted that his shift began after CW1’s shift ended and CW1 was aware that he was a “disabled veteran on light-duty” who could not perform heaving lifting. Consequently, Complainant reported CW1’s actions to management and asserted that CW1 retaliated against him. Specifically, Complainant asserted that CW1 would walk past him and whisper derogatory statements such as “lazy bitch,” “f-king pussy,” “f-king fat bitch,” “f-king snitch,” and “f-king rat.” Additionally, Complainant stated that CW1 (1) sent Complainant an email on September 4, 2014 with the subject line “FYI snitch” regarding a special meeting scheduled in October; (2) announced on September 19, 2014, that he wanted Complainant removed from union steward position; (3) and parked in a spot Complainant regularly used between September 19 - 25, 2014. During this period, the record includes a statement from Complainant’s manager (M1) indicating that on September 19, 2014, Complainant informed him that CW1 had verbally abused him by calling him “snitch and several other vulgar names,” which CW1 denied. M1 instructed both employees to cease contact with each other and filed an incident report with the Seattle District Threat Assessment Team. However, despite this directive, Complainant asserted that CW1 physically assaulted him on October 18, 2014. As previously discussed, management conducted interviews the day of the incident and as well as subsequent investigative interviews later that month. However, management did not immediately send CW1 or Complainant home on October 18, 2014. The record indicates that the altercation began around 1:15 am and management did not complete interviews until approximately 4:40 am that day. 3 The record includes that CW1 had a permeant work restriction of standing four hours per day following a work-related injury. 2021000783 9 Because M1 was concerned about the making the 7 am dispatch deadline, M1 had Complainant and CW1 remain at work until their shift ended at 7 am. The employees worked in separate areas with a different supervisor assigned to each to monitor them until their shift ended. Nevertheless, the record indicates that M1 was subsequently reprimanded for not immediately sending both employees home after the incident occurred. Following the altercation, Complainant also alleged that his worker’s compensation claim resulting from the October 18, 2014 incident with CW1 was denied because management improperly attached a personal statement from CW1 to Complainant’s application.4 However, a copy of the physician’s report submitted with Complainant’s worker’s compensation application reflects that Complainant had a “neg head CT, no facial trauma seen.” Consequently, Complainant was diagnosed with a “headache” and the physician indicated that Complainant also had “tenderness to palpation.” The physician further noted that Complainant could resume regular work on October 20, 2014, just two days after the physical altercation. Additionally, Complainant explained that CW1 continued to harass him after the October 18, 2014 incident. Complainant provided a witness statement indicating that on October 23, 2014, CW1 purposely walked closely past Complainant in the hallway. However, the witness statement indicates that as CW1 approached the aisle where Complainant and the witness were standing, Complainant’s back was toward CW1. Consequently, Complainant did not see CW1 until CW1 walked past Complainant. Additionally, there is no indication from this witness statement that CW1 said anything to Complainant or lingered around Complainant as he walked past him. We further note, that CW1’s decision to remove Complainant from his union steward position was more so related to CW1’s personal issues with Complainant. Specifically, CW1 outlined several reasons that factored into his decision for Complainant’s removal in a September 23, 2014 letter. In the letter, CW1 accused Complainant of (1) threatening to pursue charges against CW1 with the National Labor Relations Board because CW1 refused to appoint Complainant to the position of vice-president; (2) reporting to management on three separate occasion for work Complainant “mistakenly” thought CW1 had left for him; (3) failing to attend the 1st or 3rd quarter meetings; (4) making racist statements by responding, after CW1 pointed his finger at him, “No, sir, you can’t talk to me like you do these little f-king Asians;” (5) failing to provide CW1 documentation to support how unmanaged the light/limited duty program was; and (6) failing to notify CW1 of a step 3 grievance Complainant had appealed even though Complainant had agreed to notify CW1 of any appeals of step 3 or higher grievances. 4 The proper forum for Complainant to raise any challenges to actions which occurred during the Department of Labor’s Office of Workers Compensation Programs (OWCP) process is within that process itself because any remedial relief available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the EEO complaint process. 2021000783 10 We also acknowledge Complainant’s assertion that management referred to Complainant as an “idiot” in email correspondence. A copy of the October 24, 2014 email reflects that the DOS referred to both Complainant and CW1 as “idiots,” described their actions toward each other as an “idiot affair,” and stated that they were both “acting like children.” The DOS also referred to Complainant and CW1 as “Dumb and Dumber” in an October 21, 2014 email regarding their actions on October 18, 2014. While the language the DOS used was inappropriate, the record indicates that the DOS used language to describe both Complainant’s and CW1’s actions at work and were not directed towards either person’s protected bases. We further note that while the DOS initially planned to issue both Complainant and CW1 a 14-day suspension for their October 18, 2014 altercation, the DOS ultimately agreed, through consultation with Labor Relations, to issue Complainant a 7-day suspension and to issue CW1 a removal notice since CW1 was deemed the aggressor.5 Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s race, age, disability, or reprisal for prior protected EEO activity. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Therefore, we conclude that AJ2’s decision by summary judgment and finding of no discrimination was proper. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds that the request for reconsideration fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020004041 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 5 The record indicates that CW1’s disciplinary action was reduced to a 14-day suspension through the grievance process. 2021000783 11 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, 2021 Date