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

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020005143 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005143 Agency No. 1E-841-0012-19 DECISION On June 4, 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 May 14, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician, PS-10 at the Agency’s Provo Processing and Distribution Center (P&DC) facility in Provo, Utah. Complainant stated that he was assigned to Tour 1, followed by Tour 2, and then Tour 3. The P&DC Maintenance Manager stated that he is the management official responsible for directing employees on their duties at the end of their tours. On December 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2020005143 2 1. On or about August 30, 2019, incoming coworkers were not instructed to find Complainant for turn over; 2. On October 5, 2019, Complainant was not afforded the opportunity to detail in the Maintenance Supervisor position; 3. On October 15, 2019, after making the Plant Manager aware of the abusive behavior to which Complainant was subjected by his manager, nothing was done; and 4. On November 28, 2019, Complainant’s manager continuously asked Complainant if he were going to follow his manager’s instructions, followed Complainant to the locker room, yelled at Complainant and would not stop harassing him after he repeatedly asked his manager to stop. Complainant asserted that the above incidents were in retaliation for his filing of a formal EEO complaint 1E-841-0017-18 in February 2019, against the Maintenance Manager. The Maintenance Manager stated that he became aware of Complainant’s EEO activity on October 17, 2018, during the mediation process. After 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. With respect to Claim 1, Complainant asserted the Maintenance Manager had instructed the Tour 1 Electronic Technicians and Mechanics that after punching into work they were to “canvass” the floor to see if outgoing Tour 3 employees were stuck on a repair that needed to be passed on to Tour 1 employees. He stated that he found out over the course of several months that only Tour 1 received this instruction. The Maintenance Manager confirmed that he only gave this instruction to Tour 1 because “Tour 3 could very well be on machine service calls and unable to meet up to give a tour summary/turnover of the current conditions.” The Maintenance Manager further explained that there was no need for Tour 2 to canvass the prior shift because nearly all the machines were done with processing before Tour 1 ended; consequently Tour 1 employees were often sitting around waiting to clock out. Complainant complained that on August 30, 2019, while he was fixing a problem with the Automated Flat Sorting Machine, the Tour 2 employees arrived and talked to the Maintenance Manager even though Complainant had vital information to pass on to them. Complainant observed that even if the Maintenance Manager had not been present, the Tour 2 employees would not have spoken to Complainant because he does not believe that they were given the same turn over instruction as the Tour 1 employees. Complainant argued that his prior EEO activity was a factor in this different treatment because since filing his initial EEO case, the Maintenance Manager’s behavior towards Complainant had worsened. He also asserted that the manager gossiped with other employees about Complainant and sent degrading emails to Complainant with copies to other members of management. 2020005143 3 As for Claim 2, Complainant alleged that the denial of a detail was retaliatory because the Maintenance Manager made the selection decision, Complainant had expressed an interest in a detail, and yet he was not chosen even though he was better qualified based on his experience and training than the Selectee. Regarding Claim 3, Complainant claimed that on October 10, 2019, the Maintenance Manager sent an email to the Maintenance Team stating, “Personal feelings aside. We have a job to do" and setting forth specific areas that needed attention and instructions for Tour 1 which stated, "Tour 1, step it up". The email then concluded with the closing "Thank you for all your hard work." Complainant stated that he was offended by the email because it was demeaning, counterproductive, and low for morale. The manager then sent Complainant a personal email stating: "Please stop waiting for the last minute to power up machines which is making it difficult for your peers to perform their tasks. Step it up and do your job"; "MDO's shouldn't have to search for you and find your feet kicked back in the maintenance shop to power up the machine. Step it up, simply do your job"; and "Have some dignity and respect for your facility, peers, management . . . . . I recognize you will never respect me by your continued attitude towards me. You won't even acknowledge me or say hello." He concluded the email with "Thanks for your hard work. Continue to do your job please." In reaction, Complainant sent an email to the Plant Manager to which he attached the Maintenance Manager’s emails. Complainant informed the Plant Manager that he was offended by the Maintenance Manager’s directive to “step it up” and that he found his comments to be abusive. He asked the Plant Manager what he was going to do about the situation. During the investigation, Complainant asserted that the Maintenance Manager’s emails were in retaliation for his prior EEO activity because the Maintenance Manager had become “an insecure vindictive type of person who didn’t allow others to have a different opinion” from his. The Plant Manager said that he did not consider the emails inappropriate because he spoke with the Maintenance Manager about the emails and decided that he was exercising his authority to direct the work of his employees. The Plant Manager said he decided no further steps needed to be taken since it was not harassment. He asserted that he was aware of Complainant’s prior EEO activity but it was not a factor in his decision to take no action. The Agency found that Complainant established elements of the prima facie case of retaliation because Complainant had engaged in protected activity and his managers admitted awareness of his prior EEO activity. Because his prior activity remained pending at the time of the challenged events, the Agency found that Complainant established a temporal nexus between them. However, the Agency did not find any evidence in the record that any similarly situated individuals were treated more favorably. The Agency found regarding claim 1, based on the Maintenance Manager’s statement, that the Tour 2 and Tour 3 employees operated under different circumstances than the Tour 1 employees which is why he only gave turn over instructions to Complainant and the other Tour 1 employees. 2020005143 4 The Agency found regarding claim 2, that the detail Selectee was not comparable to Complainant because the Selectee was a Laborer Custodial, possessed the qualifications for the job, while Complainant’s insubordination showed him incapable of meeting the expectations of the position. The Agency observed that even if a prima facie case had been established, Complainant did not show that management’s actions were a pretext for retaliation. The Agency also found that Complainant’s retaliatory harassment claim failed. The Agency noted that with respect to Claim 1 and 3, the challenged work instructions were appropriate and the Maintenance Manager’s emails were not abusive. Thus, Complainant failed to establish that he had been subjected to hostile conduct. With respect to Claim 4 where Complainant asserted that the Maintenance Manager followed him into a locker room, yelled at him and kept asking if he was going to follow instructions, the Agency found that the record does not support a finding that Complainant was subjected to unwelcome verbal or physical conduct that was severe or pervasive or that his protected activity motivated the manager’s conduct. Instead, the Agency found that the acts to which Complainant objected are matters which occupy the normal scope and course of working relations between a supervisor/manager and his or her employees. This appeal followed. 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 law”). Assuming Complainant established a prima facie case of retaliation, we find no evidence indicating that management’s actions were motivated by Complainant’s prior EEO activity. Further, Complainant produced no evidence contradicting management’s reasons for its actions or establishing that they were untrue. Finding no pretext, we conclude that Complainant was not subject to retaliation. We also find that Complainant failed to show he was subjected to a hostile work environment. A thorough inspection of the record shows most of the alleged actions were not singular to Complainant or that they amounted to the "normal day-to-day dissatisfactions and annoyances commonly arising in any workplace." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986). Furthermore, Complainant failed to show by a preponderance of the evidence that any of the Agency’s actions were motivated by discrimination. 2020005143 5 CONCLUSION The Commission AFFIRMS the Agency’s decision finding no discrimination. 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. 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). 2020005143 6 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 9, 2021 Date