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

Equal Employment Opportunity Commission

Feb 22, 2022

Appeal No. 2020005413 (E.E.O.C. Feb. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frances A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020005413 Hearing No. 460-2020-00164X Agency No. 1B-073-0024-19 DECISION On September 24, 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 August 23, 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 (FAD). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full Time Mail Handler at the Agency’s Northern Distribution Center (NDC) in Jersey City, New Jersey. Complainant's immediate supervisor was the Supervising Director of Operations (Director). See Report of Investigation (ROI) at 107. There was also an Acting Supervising Director of Operations (Acting Director) on site. Id. On April 2, 2019, Complainant was issued a seven-day suspension. ROI at 108. The Director issued the suspension. Id. 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 2020005413 Complainant explained that the seven-day suspension was issued after another Mail Handler (Mail Handler) falsely complained to the Director that Complainant harassed her on March 5, 2019. Id. at 109. The Mail Handler reported that Complainant yelled at her, "What are you looking at? Keep Walking!" Id. at 117. The Mail Handler responded asking what Complainant's problem was and asked if he did not take his medicine. Id. Complainant disagreed with the suspension. He denied harassing the Mail Handler and stated that there was no evidence of the event occurred. Id. at 109. Complainant also reported that during a meeting with the Mail Handler and Acting Director, the Mail Handler stated to him, "[Y]ou don't know me, you don't know my family," and the Director did not intervene. Id. at 113. He noted that the Union Steward was present at the meeting. Id. In response to these events, the Director explained that the Agency had a zero-tolerance policy. Id. at 236. The Director also explained that the Mail Handler had previous issues with Complainant and they had been told to stay away from each other. Id. at 239. In the past, the Mail Handler reported that Complainant stared at her, smiled or grinned whenever he saw her, and made her uncomfortable and scared. Id. The Director clarified that after the Agency’s internal investigation of the March 5, 2019 event, she issued both employees similar disciplinary actions to impress upon them the severity of their actions. Id. On August 28, 2019, Complainant alleged that the Director attempted to have a performance review with him and yelled at him when he requested the Union Steward be present. Id. at 131. He recalled that the Director stated to him that she did not need a Union Steward for the review. Id. at 132. After Complainant asked again, the Director refused and told him that he needed to obey her orders by listening to her give him his review without a union representative. Id. When Complainant stated again that he had a right to a union representative, the Director yelled at him. Id. In response to this event, the Director stated that she did not yell at Complainant. Id. at 250. Rather, she called Complainant to her desk to review his performance and he replied, "I am not even going to look at that," and walked away. Id. She further explained that the meeting was simply a review of his performance, not a pre-disciplinary interview. Id. She stated that there was no yelling. Id. On October 2, 2019, Complainant reported that while he was helping a coworker, the Director yelled at him about not being in his case and continued to yell at him while he walked back to his case. Id. at 135. Complainant specified that at the time, he was helping a coworker get the right mail into a machine. Id. at 136. Then, the Director yelled at him, "why are you not at your workstation? You are supposed to be there, you are supposed to be at your station." Id. The Director responded by stating that she may have said that he was not supposed to be away from his case. Id. at 254. She explained that she made sure that all employees were at their job assignments. Id. She recalled that her tone of voice was low, rather than yelling. Id. 3 2020005413 On October 28, 2019, Complainant was issued a Notice of Suspension from the Director while on the work room floor. ROI at 165. The charge cited on the suspension was failure to perform duties in a safe manner. Id. Complainant explained that on October 12, 2019 while performing his duties, he accidentally cut his finger with a box cutter. Id. at 166. Following his injury, on October 21, 2019, he was provided a Pre-Disciplinary Interview with the Acting Director. Id. The suspension notice indicated that Complainant was not authorized to use the cutter and his actions violated code. Id. In response, the Director explained that the reason for the suspension was Complainant’s failure to perform duties in a safe manner. Id. at 264. She stated that Complainant had not performed his job safely, regardless of what tool he was using. Id. She also clarified that all employees were responsible for performing their duties safely. Id. In addition, the Director provided that the suspension was modified to a letter of warning with a retention period of six-months. Id. at 268. The Acting Director concurred with the discipline and reported that all employees were expected to perform their jobs in a safe manner. ROI at 320-21. On November 4, 2019, Complainant attended a Pre-Disciplinary Interview regarding an occasion when he was working at his station and the Director came up to him and shouted to ask if he was ok. Id. at 170. She then asked if there was anything wrong with the machine, and he responded in the negative. Id. At his interview, he was told that he walked away from the Director that his production count was lower than other workers, and that he had attendance issues. Id. at 171. The Director explained that Complainant was given the Pre-Disciplinary Interview in order for her to understand his behavior. Id. at 269. There was an altercation regarding a machine during which Complainant stated to the Director, "I am not even going to look at that." Id. During this event, she recalled that Complainant would not come back to his machine. ROI at 270. She denied yelling at Complainant during the meeting. Id. at 269. The Director’s Manager (Manager) stated that he spoke with Complainant after the November 4, 2019, event. Id. at 331-332. The Manager recalled that the Director stated that she was looking for Complainant because she was giving all employees individual instructions on proper work procedures and he had walked off. Id. at 332. The Manager asked if Complainant had permission to walk off the floor, and Complainant responded that he did not but was going to the restroom. Id. The Manager told Complainant that he should let the Director know when he was leaving the floor. Id. The Manager noted that he just happened to be in the area at the time of the event and it appeared to be an employee-supervisor issue. Id. at 334. Complainant reported that on November 24, 2019, the Director approached him at his workstation and berated him. Id. at 174. According to Complainant, the Director spoke to him in an arrogant way, asking what he was doing and micromanaging his actions. Id. The Director and Complainant proceeded to get into a verbal altercation. Id. 4 2020005413 In response to the November 24, 2019, event, the Director stated that she had walked towards Complainant at his machine and observed him slamming mail. ROI at 274. The Director explained that Complainant’s actions could have damaged the mail. Id. Lastly, on December 3, 2019, Complainant reported that he was given another Pre-Disciplinary Interview. Id. at 213. He said the meeting took place at the Director's desk with the Acting Director present. Id. at 214. He was told that the meeting was taking place due his failure to follow instructions and discharge of his duties. Id. Complainant has stated that he disagreed with the reasons stated for the meeting, because the Director had the Acting Director attend and only one supervisor needed to be there. Id. at 215. The Director simply denied that a Pre- disciplinary Interview occurred on this date. Id. at 285-89. Meanwhile, on August 23, 2019, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected him to discrimination and harassment on the bases of race (Caucasian), national origin (Italian-American), sex (male), color (white), and reprisal for prior protected EEO activity2 under Title VII of the Civil Rights Act of 1964 when: 1. On March 5, 2019, management made false allegations about him and called him to the office and made inappropriate statements; 2. On April 2, 2019, he was issued a Notice of Seven-Day Suspension; 3. On August 28, 2019, his Supervisor had a performance review with him and yelled at him when he requested that a union steward be present 4. On October 2, 2019, Complainant’s Supervisor yelled at him about not being on his case and continued to yell at Complainant while Complainant walked back to his case after helping a coworker; 5. On October 28, 2019, he was issued a Notice of Suspension, which management issued to him on the work room floor; 6. On November 4, 2019, he was given a Pre-Disciplinary Interview after he reported that his Supervisor was harassing him; 7. On November 24, 2019, his Supervisor approached him at his workstation to berate him, and when he reported the harassment, management failed to take appropriate action; and 8. On December 3, 2019, he was given a Pre-Disciplinary Interview. 2 Complainant identified his prior protected EEO activity as his instant August 23, 2019, EEO complaint. 5 2020005413 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency went through each of Complainant’s claims and determined that he had not shown unlawful disparate treatment, and that management had provided non-discriminatory reasons for their actions. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Director was aggressively punitive towards him. He also argues that the FAD incorrectly stated that the evidence did not support a finding that he was subjected to unwelcome discrimination. Complainant contends that the ROI was not complete; and as such, he has attached witness statements to his brief on appeal. Complainant specifically attaches an affidavit from the Union Steward who was present at the November 4, 2019. The Union Steward provided that the Director was loud and hostile toward Complainant about his work performance and numbers during a meeting she attended. The Union Steward explained that to him, it appeared that the Director was under pressure from upper management and was using Complainant as a scapegoat. He also reported that several days later he spoke with the Director and asked if there would be discipline and she stated there would not. Complainant includes several other affidavits which confirm the occurrence of the meetings and suspensions referred to in Complainant’s claims. The Agency has not responded to Complainant’s arguments on appeal. 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”). 6 2020005413 ANALYSIS AND FINDINGS Disparate Treatment (Claims 2-8) Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). In the instant case, assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race, sex, reprisal, and color, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 2, the Director explained that the Agency had a zero-tolerance policy, and that the Mail Handler had previous issues with Complainant. ROI at 236-39. As such, the confrontation was taken seriously. As to claim 3, the Director stated that she called Complainant to review his performance and he replied, "I am not even going to look at that" and walked away. ROI at 250. She further explained that the meeting was simply a review of his performance, not a Pre-Disciplinary Interview. Id. She stated that there was no yelling whatsoever. Id. As to claim 4, the Director explained that she made sure that all employees were at their job assignments. ROI at 254. As to claim 5, Complainant confirmed that on October 12, 2019 while performing his duties, he accidentally cut his finger with a box cutter. ROI at 165. As to claim 6, the Director averred that she engaged in the meeting in order to understand Complainant’s behavior and that there was no yelling during the meeting. After the meeting, Complainant spoke to the Manager. The Manager noted that he just happened to be in the area at the same time and the meeting appeared to be a normal employee-supervisor issue. As to claim 7, the Director reported that she approached Complainant because she witnessed Complainant performing an action which could damage mail. ROI at 274. She stated that she spoke to him because he was mishandling the mail, and that her tone of voice was normal. Id. at 275. As to claim 8, the Director reported that there was no Pre-Disciplinary Interview on this date. ROI at 285. 7 2020005413 The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency's reasons for its actions were pretextual or that the Agency was motivated by discriminatory animus. In so finding, as to claim 2, we note that Complainant has not presented any evidence in the record refuting the Director’s contentions that both employees were punished due to the zero- tolerance policy or that the suspension was a result of his interaction with the Mail Handler. Complainant has argued that the above actions took place because he was the only white, non- Hispanic, Italian/American male employee working in the section at the time of the incidents. ROI at 110. However, he has not presented evidence to support this statement. In contrast, as to claim 2, the Mail Handler indicated Complainant’s attitude towards her and that in the past Complainant stared at her, smiled or grinned whenever he saw her, and made her uncomfortable and scared. RIO at 236. As noted above, the Director both employees’ similar disciplinary action to impress upon them the severity of their actions. Id. For each of the actions above, the Director explained her purpose for approaching Complainant, and further indicated that there was not yelling. In regard to claims 3-8, Complainant has provided that these events were due to his race, color, national origin, and sex because he was the only White/non-Hispanic, Italian American, male with a job in the pay location at the time. See e.g., ROI at 171-72. However, Complainant has only made bare assertions that the Director discriminated against him, which are insufficient to prove pretext. In the Union Steward statement provided by Complainant, he noted that the Director appeared to be under pressure from upper management regarding production. He did not indicate that the meeting occurred due to discriminatory purposes. We find that Complainant has not established that he was subjected to disparate treatment discrimination with respect to claims 2-8. Hostile Work Environment We note that Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to claims 2-8. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). It is well-settled that harassment based on an individual’s race, national origin, sex, color, and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on race, color, national origin, or sex or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, 8 2020005413 or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). With respect to claim 1, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory animus based on his race, color, national origin, or sex or prior EEO activity. Furthermore, Complainant has summarily asserted that false statements were made. However, he has not provided details in support of his claim. As such, we find he has not satisfied his burden to show that his work environment was such as to be intimidating, hostile, or offensive or to have a chilling effect on protected EEO activity. As such, we find that Complainant has not established that he was subjected to a hostile work environment based on his protected classes. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed 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. 9 2020005413 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. 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. 10 2020005413 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 22, 2022 Date