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

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2020004337 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elbert H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004337 Hearing No. 520-2020-00129X Agency No. 4B-060-0015-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 15, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as a City Carrier, Q-01, at the Post Office in Amherst, Massachusetts. On February 26, 2019, Complainant filed a formal complaint in which he alleged that the Agency discriminated against him and subjected him to a hostile work environment on the basis of age (67) as evidenced by multiple incidents including, inter alia: 1. On multiple occasions, Complainant had been yelled at, insulted, threatened, and subjected to humiliating treatment by management; 2. On September 26, 2018, Complainant was subjected to re-training on how to carry his route; 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. 2020004337 2 3. On October 1, 2018, the Postmaster (PM) invaded Complainant’s personal space and followed him on his route taking pictures of him and shouting at him; 4. On October 5, 2018, PM sent another carrier to finish Complainant’s route while Complainant was sent home early and told not to work overtime the following day; 5. On October 9, 2018, a supervisor from another office was sent to observe Complainant making deliveries and as a result of those observations, Complainant was sent for re- training; 6. On October 18, 2018, Complainant was issued a letter of warning; 7. On October 30, 2018, Complaint was issued a notice of a seven-day paper suspension; 8. On November 6, 2018, management questioned Complainant about a month of sick leave he had taken in March 2018 and asked him questions about his medical status and his family medical history; 9. On November 19, 2018, Complainant was issued notice of a 14-day suspension; and 10. On December 31, 2018, Complainant was issued notice of a 14-day suspension. Complainant identified the Postmaster (PM), the regular Customer Services Supervisor (CSS) and three Acting Customer Service Supervisors (ACSS1, ACSS2, ACSS3) as the responsible management officials. At the conclusion of the investigation, the Agency provided Complainant a copy of the investigative report (IR) and notified him of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge A(J). Complainant initially requested a hearing but subsequently withdrew his request. The AJ assigned to the matter remanded the complaint for issuance of a final agency decision. The Agency issued its final decision finding that Complainant had not been subjected to discrimination or a hostile work environment 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 law”). Hostile Work Environment To establish a hostile work environment claim, 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; and (4) the harassment affected a term or condition of employment 2020004337 3 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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove his harassment claim, Complainant must establish that she 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only 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). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that any of the managers’ actions were based on discriminatory animus related to his age. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. All four named management officials repeatedly cited Complainant’s numerous performance deficiencies as the reason for taking such actions as pointing out and documenting Complainant’s untimely deliveries and time-wasting tendencies, observing Complainant on street deliveries, having other employees case his mail for him, and issuing discipline when warranted. Complainant was issued progressive discipline on several occasions for leaving his keys in the ignition, poor performance, and time-wasting practices. Management provided Complainant multiple opportunities to improve and correct his behavior prior to issuing progressive discipline. IR 462-497, 510, 512- 14, 516-18, 526-31, 541, 543-45, 547, 554, 575. Apart from his own speculative and conclusory assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by PM, CSS, ACSS1, ACSS2, and ACSS3 or which cause us to question their veracity as witnesses. Moreover, since Complainant ultimately chose to withdraw his request for a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations based on personal observations of witnesses’ demeanor during testimony. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Accordingly, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020004337 4 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). 2020004337 5 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 December 13, 2021 Date