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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004115 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darren M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004115 Agency No. 4E-800-0133-19 DECISION On May 26, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Valmont Station in Boulder, Colorado. On July 24, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity when: 1. on June 21, 2019, Complainant received a Notice of Removal for Failure to be Regular in Attendance and Failure to Follow Instructions; 2. between August 2, 2019 through September 5, 2019, Complainant was not provided with the materials and equipment necessary to perform his job duties; 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. 2020004115 2 3. from August 2, 2019 through the present, Complainant was not allowed to address issues with his route such as Delivery Point Sequence (DPS) and Flats Sequencing System (FSS) mail being out of order or given time to organize two years of change of address labels for his route; 4. from August 2, 2019, Complainant was told that he was not allowed out of his mail case without his supervisor’s permission; 5. on August 6 and 8, 2019, management insulted him by calling him “irrational”, “abnormal”, and a “liar”; 6. on August 6, 2019, Complainant was yelled at on the workroom floor rather than being called into the office; 7. on August 6, 2019, Complainant was told that he would no longer be given any assistance on his route, and if he asked for assistance in any way, he would be given discipline for disobeying orders; 8. in August 2019, all of Complainant’s accrued sick and annual leave were taken from him and he was charged Leave Without Pay whenever he requested leave; 9. on September 9, 2019, when Complainant asked his supervisor about his missing leave, he told him that babies that cry to the EEO no longer received federal benefits and, if he did not like it, he could quit; 10. in August 2019, Complainant’s start time was moved to an hour later than his coworkers; and 11. on September 9, 2019, Complainant’s supervisor was verbally abusive and ridiculed him when he told him that he was going home on stress leave. The Agency accepted the complaint for investigation. Complainant listed the following responsible management officials: the Supervisor of Customer Service (Supervisor1)2, a second Supervisor of Customer Service (Supervisor2)3, the Postmaster4, and the Manager of Customer Service (Manager)5. The investigative record reflects the following pertinent matters relating to the subject claims: 2 Complaint File, Volume 1 (CF, V1) at 172. 3 CF, V1 at 223. 4 Throughout the record this individual is referred to as both the Officer in Charge and the Postmaster. CF, V1 at 252. 5 CF, V1 at 275. 2020004115 3 Working Conditions - Claims 1 - 7, 10 and 11 By letter dated June 4, 2019, Complainant was issued a Notice of Removal (Notice). Complaint File, Volume 2 (CF, V2) at 74-6. The Notice charged Complainant with Failure to be Regular in Attendance, and Failure to Follow Instructions. Id. The Notice was signed by Supervisor2 and the Postmaster. Id. Complainant denied the reasons listed in the Notice. CF, V1 at 120-23. Complainant asserted that he attempted to work but was made to leave because a restraining order had been filed against him by the Valmont Station. Id. Supervisor2 stated that a restraining order was filed against Complainant because he previously assaulted an Agency employee. CF, V1 at 226. A grievance was later filed, and a July 30, 2019 decision resolved the grievance by removing the Notice from all records and files. CF, V2 at 80. Supervisor1 stated that Complainant returned to work on August 2, 2019. CF, V1 at 177. Complainant asserted that, upon his return, Supervisor1 failed to provide him with the materials and equipment, such as stationary supplies, necessary to complete his job. CF, V1 at 125. Supervisor1 indicated that Complainant was never denied materials, nor did Complainant ever inform him that something he required was out of stock. CF, V1 at 178-81. Supervisor1 acknowledged that running out of supplies was something that happened occasionally to everyone. Id. From August 2, 2019 through the present, Complainant alleged that he was not allowed to address issues with his route such as DPS and FSS mail being out of order or given time to organize two years of change of address labels for his route. CF, V1 at 127-30. Supervisor1 asserted that this was false and that another employee had covered Complainant’s route and had previously changed the address labels. Therefore, Supervisor1 stated that there were no issues with Complainant’s route. CF, V1 at 181-82. On August 2, 2019, Complainant was told that he was not allowed out of his mail case area without Supervisor1’s permission. CF, V1 at 130-32. Supervisor1 stated that he had asked Complainant why he needed two hours of assistance on his route when others were able to complete the route with much less time. During the investigation, Supervisor1 noted that for almost two years, other carriers were able to complete the same route with the same volume without assistance and within a standard workday. Complainant then demanded to speak to a union steward and began walking away to find one. Supervisor1 stated that he told Complainant to go back to work but that he never told Complainant he could not leave his mail case area. Supervisor1 noted that employees can request time to speak to a union steward, but that employees would need to wait for approval before leaving their work case to speak to a steward. CF, V1 at 184-86. Complainant also asserted that he was informed that he would no longer be given any assistance on his route, and if he asked for assistance in any way, he would be given discipline for disobeying orders. CF, V1 at 137-38. 2020004115 4 Supervisor1 and the Postmaster denied this allegation. CF, V1 at 191-94 Supervisor1 asserted that he questioned Complainant as to why he needed assistance as there was two years of data where other carriers completed the same route and volume in the allotted time. Id. Complainant alleges that on August 6 and 8, 2019, management insulted him by calling him “irrational”, “abnormal”, and a “liar”. CF, V1 at 132-34. Supervisor1 testified that he questioned Complainant’s request for assistance and noted that Complainant’s request for two hours of assistance was abnormal. Supervisor1 acknowledged that he believes Complainant to be irrational and a liar at times. CF, V1 at 187-188. Additionally, on August 6, 2019, Complainant asserted that he has been yelled at on the workroom floor by Supervisor1 and the Postmaster, rather than being called into the office. CF, V1 at 132-34. Both Supervisor1 and the Postmaster asserted that Complainant was not telling the truth and that while management attempted to have a civil conversation with Complainant, it was he who became loud and argumentative. CF, V1 at 186-189. Supervisor1 stated that Complainant became loud and frightening, then claimed he was too stressed to continue working and left work. CF, V1 at 187-89. It is unclear from the record whether Complainant left before his shift ended. In August 2019, Complainant asserted that Supervisor1 moved his start time to an hour later than his coworkers. CF, V1 at 150-52. Supervisor1 stated that Complainant routinely exceeded his route time. CF, V1 at 213. Supervisor1 also noted that as a non-Overtime Desired List (OTDL) employee, Complainant started at 8:30 a.m. just like other non-OTDL employees. CF, V1 at 213. On September 9, 2019, Complainant asserted that he was ridiculed and verbally abused by Supervisor1 when he told Supervisor1 that he was going home on stress leave. CF, V1 at 152-53. Supervisor1 denied the allegation. CF, V1 at 215. No one else was present during the exchange. Leave - Claims 8 and 9 In August 2019, Complainant asserted that all his accrued sick and annual leave was taken away from him by Supervisor1 and he was charged Leave Without Pay (LWOP) whenever he requested leave between August through December 2019. CF, V1 at 143-46. Supervisor1 stated that he had no knowledge of Complainant’s sick or annual leave balances being removed and that he did no such thing. CF, V1 at 197-201. Supervisor1 stated that Complainant has been paid sick leave on multiple occasions, and that there was only one incident of LWOP that he could recall which occurred when Complainant refused to provide medical documentation. CF, V1 at 198. On September 9, 2019, Complainant asserted that when he asked Supervisor1 about his missing leave, he was told that babies that cry to the EEO no longer received federal benefits and if he did not like it, he could quit. CF, V1 at 147-48. Supervisor1 denied this allegation and stated no one else was present because the incident never occurred. CF, V1 at 211-12. 2020004115 5 The record contains the Time and Attendance Collections System (TACS) Employee Everything Reports for Complainant which demonstrated that Complainant utilized both annual and sick leave between August and November 2019. CF, V2 at 24-73. The documents also show that Complainant was charged with Absent Without Leave (AWOL) and LWOP for the same duration. Id. 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 the Agency did not hear back, it issued a final Agency decision on May 20, 2020, pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted appellate statements. 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 Complainant alleges that he was subjected to disparate treatment. 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. 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. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020004115 6 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant asserted that he was discriminatorily issued the Notice as alleged in claim 1. However, the record demonstrated that the Notice was initially issued because of Complainant’s assault of an Agency employee and the subsequent restraining order that resulted from the assault. Complainant also asserted that management consistently targeted him and made working conditions difficult because of his EEO activity, such as not providing him with stationary materials (claim 2); not allowing him to address issues with his route (claims 3, 4, 7, and 10); and removing his accrued leave thus forcing him to use only Leave Without Pay (claim 8). Despite Complainant’s numerous claims of disparate treatment, the Agency has articulated legitimate, nondiscriminatory reasons for each claim. For example, Complainant claimed he was denied access to stationary materials; however, the record demonstrated that his access was the same as everyone else and that at times the facility simply ran out of stock of certain items. Regarding issues with Complainant’s route (claims 3, 4, 7, and 10), the record demonstrated that Complainant was never denied access to assistance, threatened with discipline if he asked for assistance, forced to stay within his mail casing area, or separately targeted and forced to move his start time. The record also demonstrated that for Complainant’s nearly two-year absence, other carriers were able to carry and deliver the same route and volume without issue and/or assistance. Lastly, in claim 8, regarding his leave, despite his assertions, the record demonstrated that Complainant voluntarily took leave in several different forms between August and November 2019, including both annual and sick leave. Further, there is no indication in the record that Complainant had any of his accrued leave inappropriately removed. We also acknowledge Complainant’s allegation that Supervisor1 purportedly commented that only cry babies go to the EEO. However, Complainant made this assertion without providing any evidence and it is not supported by the record. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020004115 7 An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to demonstrate that the Agency’s actions were motivated by discriminatory or retaliatory animus. Hostile Work Environment As a preliminary matter, we note that a finding of a hostile work environment for claims 1-4, 7, 8, 10, which constituted discrete acts of disparate treatment, is precluded by our determination that Complainant 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. 01982923 (Sept. 21, 2000). In considering whether any of the actions listed by Complainant, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on a statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). Generally, in assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (Mar. 19, 1990); Cobb v. Dep’t of the Treasury, Request No. 05970077 (Mar. 13, 1997); Lashawna L. v. Nuclear Reg. Comm’n., EEOC Appeal No. 2019002093 (Sept. 22, 2020), req. for recon. denied EEOC Request No. 2021000455 (Dec. 30, 2020) (complainant detailed several incidents of harassment and provided names of witnesses who corroborated her claims and agency failed to meet its burden of articulating legitimate, nondiscriminatory reasons). 2020004115 8 Moreover, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive it to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001). We note that with regard to retaliatory harassment, Complainant only needs to show that such actions are the type of action that would dissuade a reasonable employee from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53 (2006); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016); Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Assuming, arguendo, that Complainant established parts 1 and 2 of a prima facie case of harassment, we find that based on the record Complainant has not met the requirements of parts 3 or 4. In order to prevail, a complainant must provide more than just generalized allegations of harassment. See Alise A. v. U.S. Postal Serv., EEOC Appeal No. 2019005036 (July 20, 2021) (complainant alleged that her coworker frequently disparaged her and initiated a verbal and physical altercation due to her protected classes. However, complainant failed to provide evidence beyond her own conclusory statements. Sympathetic witness statements attested that complainant and the coworker had a contentious relationship but did not connect such conflict to the complainant’s protected classes). Ultimately, conclusory statements of harassment, without more, will not support a complainant’s claim of harassment. Here, in support of his claim, Complainant provided several examples where he asserted that he was constantly harassed and insulted by management such as when he was called irrational and a liar (claim 5); was publicly humiliated (claim 6); was told that only babies cry to the EEO (claim 9); and when he was ridiculed for wanting to take stress leave (claim 11). In claim 5, Supervisor1acknowledged that he believes Complainant to be irrational and a liar at times. However, even with this acknowledgment, there is no indication that Supervisor1’s belief and/or treatment of Complainant was based on his protected EEO activity. In claim 6, Complainant asserted that management humiliated him by yelling at him on the open work room floor. Both Supervisor1 and the Postmaster denied this claim and asserted that while they attempted a civil conversation, it was Complainant that became aggressive. Even if Supervisor1 and the Postmaster yelled at Complainant on the open work room floor, Complainant failed to present evidence to connect such actions to his EEO activity. Lastly, in claims 9 and 11, aside from his generalized allegations that Supervisor1 was targeting and harassing him, which Supervisor1 denied, Complainant provided no actual evidence, no witness statements, nor anything beyond his conclusory statements. 2020004115 9 Further, based on Complainant’s submissions and the record as whole, we find that the examples provided above, taken together, do not demonstrate that Complainant was subjected to a hostile work environment. We note that discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005); see also Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 FEP Cases 601 (E.D. Wis. 1984) (opining that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive”). Additionally, not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp’t Opportunity Comm’n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). What is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In sum, Complainant did not provide the evidence required to support a finding of discrimination or hostile work environment or any discriminatory animus. The Commission also recognizes that ordinary managerial and supervisory duties include monitoring subordinates, scheduling the workload and attendance, scrutinizing and evaluating performance, providing job- related advice and counsel, and taking action in the face of performance shortcomings, are part of normal operational management. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final 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. 2020004115 10 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. 2020004115 11 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 November 22, 2021 Date