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

Equal Employment Opportunity Commission

Jul 26, 2021

Appeal No. 2020001193 (E.E.O.C. Jul. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genaro G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020001193 Agency No. 4B-117-0001-19 DECISION 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 October 4, 2019, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Hempstead Post Office in Hempstead, New York. Complainant filed an EEO complaint alleging that he was subjected to discriminatory harassment based on race (African-American), color (black), age (49), and in reprisal for prior protected EEO activity when: 1. On a daily basis, management curtails Complainant’s mail and watches him closely while he works in the office and on 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. 2020001193 2 2. On a daily basis from February 2018 through December 2018, and from September 25 through 30, 2017, management disapproved Complainant’s 3996 Forms (Request for Auxiliary Assistance); 3. Two to three times per week from February 2018 through November 2018, and from September 25 through 30, 2017, management paid overtime to other carriers to case Complainant’s route and refused to give Complainant overtime; 4. Once or twice each month, Complainant has been given Pre-Disciplinary Interviews (PDIs); 5. On January 31, 2019, Complainant was given discipline for failure to follow instructions; 6. On February 5, 2019, Complainant was given a PDI and was issued discipline on February 13, 2019; 7. On February 1 and 19, 2019, Complainant was disciplined for failure to curtail mail when instructed to do so by the postmaster; 8. From December 2017 and continuing, management limited Complainant’s work hours by utilizing other carriers; 9. On or about February 28, 2019, Complainant was given a PDI and a verbal discussion; and 10. On January 22, 2019, Complainant was called names, including being called a pathological liar in front of his coworkers.2 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 Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision, the Agency found that in Claims 2, 3, 5, 6, 7, 8, and 9, Complainant had alleged instances of disparate treatment and had failed to show that similarly situated employees were treated more favorably. The Agency concluded that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. Specifically, for Claim 2, Complainant made requests for auxiliary assistance multiple times a week (many more than were submitted by coworkers he identified as comparable), and his mail volume was often insufficient to justify approving the requests; Complainant never finished his route under eight hours regardless of the amount of mail he had that day. For Claims 3 and 8, management denied that other carriers were paid overtime to case Complainant’s route; rather, carriers who had not yet reached eight hours of work on a particular day would case other carriers’ routes to make up their hours. Management often curtails mail in order to control carrier hours, and Complainant’s mail was not curtailed on a daily basis. Also, Complainant received overtime at a similar rate to the other carriers he claimed were treated more favorably. For Claims 5, 6, 7, and 9, Complainant was given PDIs or formal discipline for failing to follow instructions after marking up his mail incorrectly and for failure to curtail his mail. 2 The record reflects that Claims 5 through 10 were amended to the formal complaint. 2020001193 3 The Agency also found that Claims 1, 4, and 10 constituted claims of harassment and, even if true, were not sufficiently severe or pervasive to rise to the level of hostile work environment and were not based on Complainant’s protected statuses. The instant 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 discrimination based on the discrete incidents, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Furthermore, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to Claims 2, 3, 5, 6, 7, 8, and 9. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We find that Complainant failed to show by persuasive evidence that any of the incidents in the complaint were motivated by discrimination. Furthermore, we find that claims 1 and 10 were not sufficiently severe to constitute a hostile work environment. Even if we assume for the sake of argument that the complaint as a whole could constitute harassment, we find no persuasive evidence that any harassment was motivated by discrimination. 2020001193 4 CONCLUSION Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, 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. 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. 2020001193 5 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. 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 July 26, 2021 Date