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

Equal Employment Opportunity Commission

Oct 18, 2021

Appeal No. 2020004913 (E.E.O.C. Oct. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grant W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004913 Agency No. 4B-105-0051-19 DECISION On May 23, 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 April 24, 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. 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 Part-Time Flexible Sales Service Distribution Associate, PS-06, at the Agency’s Maybrook Post Office in Maybrook, New York. On October 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Asian), sex (male), religion (Hindu), color (Brown), age (67), and in reprisal for prior protected EEO activity when: 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. 2020004913 2 1. on June 7, 2019, management slammed a door on Complainant’s right hand; 2. on June 10, 2019, management changed Complainant’s work assignment from working the Amazon mail to cleaning the facility; 3. on or about the week of June 14, 2019, Complainant was not compensated for the 10.75 hours he worked in overtime status; 4. beginning in June of 2019, and ongoing, Complainant was no longer being paid for higher level work assignments as a 204-B Acting Supervisor; 5. on July 17, 2019, management stood in Complainant’s personal space and yelled at him in front of co-workers and customers; and 6. beginning in July of 2019, and ongoing, management would follow Complainant around the facility, stand by the restroom, walk behind him, and invade his personal space. With respect to Claim (1), Complainant alleged that the Postmaster at Mayflower pushed a door onto him. When Complainant attempted to stop the door with his hand, he hurt his fingers. Complainant says he told the Postmaster that she hurt his fingers. Complainant admitted he did not take any time off from work or file a workers’ compensation claim. Complainant speculated that the Postmaster intentionally slammed the door on him. The Postmaster denied ever hearing that Complainant hurt his fingers. Rather, she explained that Complainant was cleaning the bathroom with the door closed when she knocked on the door and pushed it slightly. Complainant held the door with his foot, and then the Postmaster walked away. The Post Office Operations Manager (POOM) recalled asking Complainant if he was injured, and Complainant said no. After speaking with the Postmaster, the POOM determined the incident did not warrant any action. In Claim (2), Complainant admitted that his assignments were subject to change on any given day. Complainant contended that the Postmaster changed his assignment and then the Postmaster proceeded to work the Amazon mail, which Complainant claimed was a violation of Agency regulations. The Postmaster asserted that she is contractually permitted to perform up to 15 hours per week doing clerk work and most of the time, she worked the Amazon mail. The POOM confirmed that the Postmaster was allowed to do up to 15 hours of clerk duties per week. Regarding Claim (3), Complainant stated that he worked 40 regular hours and 10.75 overtime hours during the week of June 14, 2019. Complainant claimed that when he received his paycheck two weeks later, he learned that he was not compensated the appropriate amount of overtime hours. Complainant acknowledged that he was issued a pay adjustment after notifying the Postmaster and the POOM. The Postmaster explained that Complainant never provided his “green cards” to verify the hours that he worked at other post offices. Thus, she was unaware that Complainant worked overtime hours. However, the POOM directed the Postmaster to pay Complainant 10.75 hours of 2020004913 3 overtime, which she did despite Complainant’s failure to provide proof of the hours. The POOM noted that Complainant has had difficulty turning in his timecards in a timely manner. For Claim (4), Complainant claimed that he regularly worked as a 204-B Acting Supervisor on Saturdays, and whenever the Postmaster was off. In February 2019, Complainant noticed he was no longer receiving higher-level pay and that the Postmaster was giving acting supervisor duties to a carrier instead. The Postmaster explained that a carrier approached her seeking to advance in her career. Accordingly, the Postmaster sought to give the carrier the opportunity to perform supervisory duties and asserted she informed Complainant that she would be assigning 204-B duties to the carrier. In Claims (5) and (6), Complainant said that the Postmaster went to the Montgomery Post Office to get his timecard. Complainant protested that he had given her the timecard a month earlier. Complainant claimed that the Postmaster continued to violate his personal space, which he defined as three feet. The Postmaster would also walk behind him and follow him while he was cleaning. The Postmaster responded that Complainant was constantly texting the POOM about not being paid for time worked. The Postmaster stated that Complainant was not leaving his timecards in her office, which prevented her from approving his pay. In an effort to resolve the situation, the Postmaster went to the Montgomery Post Office to instruct Complainant to leave the timecards in her office. The Postmaster admitted she was frustrated with the situation but denied yelling. The Postmaster further denied following Complainant around or otherwise invading his personal space. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 2020004913 4 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant establish a prima facie case of discrimination and reprisal, the Postmaster articulated legitimate, nondiscriminatory reasons for each of her actions as more fully detailed above. The Postmaster said she was unaware Complainant hurt his fingers, and that she had simply opened the door slightly. The Postmaster also acted within her supervisory authority to redirect Complainant’s assignments. Likewise, the Postmaster assigned another employee as 204-B Acting Supervisor because the carrier requested an opportunity for career advancement. Regarding his timecards, the Postmaster explained that she could not pay Complainant if she did not have his timecards, but Complainant did receive a pay adjustment for the claimed overtime hours. Finally, the Postmaster denied yelling at Complainant, invading his personal space, and following him around the facility. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant fails to carry his burden; Complainant’s arguments consists of nothing more than speculation. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Furthermore, to the extent that Complainant claims that the alleged incidents constitute a hostile work environment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. 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 Agency management were motivated by discriminatory or retaliatory animus on any of his alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020004913 5 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. 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. 2020004913 6 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 October 18, 2021 Date