[Redacted], Dewey R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2021001452 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dewey R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001452 Hearing No. 520-2017-00585X Agency No. 4B-117-0013-17 DECISION On December 21, 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 November 4, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor Customer Service, Grade EAS- 17, at the Post Office in Rockville Centre, New York. On December 15, 2016, Complainant initiated contact with an EEO Counselor. The matter remained unresolved after informal EEO counseling concluded. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021001452 On January 24, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), color (white), age (52), and in reprisal for protected EEO activity (unspecified) when: 1. On September 28, 2016 and November 9, 2016, Complainant’s Postmaster called him “Lazy”; 2. On October 17, 2016, his Postmaster stated it was better when Complainant was not at work; and 3. On December 23, 2016, his Postmaster encouraged Complainant's co-workers to work together with getting rid of Complainant. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 31, 2019 motion for a decision without a hearing, and the AJ issued a summary judgment on November 4, 2020. The Agency subsequently issued a final order adopting the AJ’s summary judgment decision, finding no discrimination was established. The instant appeal followed. On appeal and through counsel, Complainant argues that various facts merited a hearing. Specifically, Complainant argues that the AJ had failed to properly consider three witnesses who had provided independent sworn statements that the acting Postmaster (mixed-race/African American, brown, age 50) had shared unwarranted criticism of Complainant’s performance with co-workers at the Rockville Centre Post Office. Additionally Complainant stated that the Postmaster’s decisions were part of a larger pattern of favoritism toward African Americans in terms of discipline and on matters concerning time and attendance. In support of his position, Complainant stated that the Postmaster helped a problematic new hire who was African American complete his probationary term. But then, the Postmaster had compelled a probationary employee who was Caucasian to resign for comparable performance issues. Moreover, Complainant argued that the Postmaster was liberal in granting leave and overtime to non-Caucasian shift supervisors. Complainant accused the Postmaster of denying his discretion to approve leave requests for employees on the shift that he supervised. Complainant stated that the Postmaster often communicated on collegial terms with another shift supervisor Customer Service (SCS2) (African American, mixed-race, Spanish, age 35) ho had less seniority than Complainant. Additionally, Complainant asserts that SCS2 benefited from a supportive relationship with the Postmaster. In contrast, Complainant said the Postmaster was unfriendly toward him or avoided taking with Complainant entirely. Complainant further asserted that, after Complainant informed the Postmaster that he planned to file an EEO complaint, the Postmaster retaliated by spreading rumors that Complainant was lazy and by encouraging coworkers to help remove Complainant. 3 2021001452 ANALYSIS AND FINDINGS 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). In the instant matter. EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. See Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, a 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. See 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed this record and find it adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. The record had detailed sworn statements from both Complainant and the Postmaster to whom he attributed the alleged acts of discrimination. More importantly, the investigative report included witnesses who were Complainant’s comparators and his subordinate letter carriers who had been present for the allegedly discriminatory events. Overall, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with adequate specificity to particular evidence in the investigative file or provided other evidence beyond bare arguments 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. New Issues Raised on Appeal As we discussed in detail above, Complainant’s appeal brief has raised new issues about overtime and authority to approve leave to reinforce his accusation that the Postmaster negative statements had subjected him to discrimination. We carefully considered Complainant’s appellate arguments and all evidence of record. Usually, we do not entertain new issues raised for the first time on appeal. However, in the interest of adjudicatory economy, we believe the evidence of record adequately addresses these issues. Whereas Complainant’s appeal asserted that Complainant had been ignored or disrespected by Agency management, the Postmaster stated that Complainant required less interaction and supervision because he had some twenty years of experience. As to Complainant’s contentions regarding less overtime than his comparators, the Postmaster explained that less overtime was available as a result of Complainant’s personal preferences. At least one witnesses corroborated the Postmaster’s account that Complainant had less overtime because Complainant had declined to start working before his shift’s regular hours. 4 2021001452 Concerning Complainant’s leave approval authority, SCS2 stated that he also had to obtain the Postmaster’s approval for leave requests on his shift because their facility’s staff was short-handed. Complainant has failed to carry the burden of proving the Agency justifications were pretexts for unlawful animus toward age, race, color or against EEO-related activity. EEO law does not provide employees relief for an acrimonious relationship with a manager. Rather, Title VII shields them only from disparately distributed opportunities or harsh treatment. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981). Harassment To establish harassment or a hostile work environment, a complainant must show that: (1) he belongs to a protected class; (2) he was subjected to unwelcome conduct involved his protected class; (3) the harassment was based on his protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998) and EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). In assessing whether a harassment claim is actionable, the conduct at issue must be viewed with the totality the circumstances. We must consider the nature and frequency of offensive encounters and the time over which events occurred. 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, EEOC Request No. 05970077 (Mar. 13, 1997). Unless it is extremely serious, teasing, offhand comments, or isolated incidents do not cause not discriminatory change employment. Kozak v. U. S. Postal Serv., EEOC Request No. 01A63021 (Aug. 23, 2006). Actional harassment must objectively and subjectively offensive such that a reasonable person would find the work environment hostile or abusive. Battle v. U.S. Postal Serv., EEOC Request No. 0120083387 (Feb. 4, 2010). We are not persuaded that the various remarks discussed above (i.e. Complainant’s purported laziness), were related to Complainant’s protected statuses. Our case precedent has found similar incidents are everyday workplace indignities instead of discrimination. In sum, the record evidence failed to substantiate the level of severe or pervasive abusiveness necessary to foster an impermissible hostile work environment. Silvia B. v. Dep’t of the Treasury, EEOC Appeal No. 0120173290 (Oct. 24, 2018). Reprisal EEOC reviews retaliation claims broadly to prevent an employers from deterring employees’ exercise of their rights under anti-discrimination laws. EEOC Compliance Manual, Sec. 8, “Retaliation,” No. 915.003 (May 20, 1998) at 8-15; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). A supervisor who acts in a manner that reasonably discourages an employee from asserting Title VII-protections renders the employer liable for reprisal discrimination. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. 5 2021001452 for recons. den. EEOC Appeal No. 0520090654 (Dec. 16, 2010). Additionally, Title VII expressly prohibits those statements that have a “chilling effect” on a reasonable employee from engaging in EEO-covered activities. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). In the present matter, we concur with the AJ. In December 2015, Complainant initiated the informal EEO counseling. According to Complainant’s appellate narrative, on the following day he informed the Postmaster that he intended to file EEO claims against her. Even so, the overall testimonial evidence varied widely as to who had made statements that Complainant was “lazy” or detrimental to the workplace. The Postmaster denied insulting Complainant but attributed the negative comments to employees who were displeased with Complainant’s supervision. For purposes of reprisal analysis, we considered the allegations true. Even so, the evidence was insufficient for clear nexus between the Postmaster’s disparaging words and any decisions regarding Complainant’s employment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). CONCLUSION After a review of the record and contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s summary judgment 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 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 within which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Directive for 29 C.F.R. Part 1614, at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his request and any statement or brief in support of his request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 6 2021001452 Alternatively, Complainant can submit his request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via 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, 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his 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 request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests filed after the deadline only in very limited circumstances. 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 7 2021001452 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 September 9, 2021 Date