[Redacted], Ivan J., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020000617 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020000617 Agency No. 1J-531-0022-19 DECISION On September 24, 2019, 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 26, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Mail Handler, PS-04, at the Agency’s Priority Annex facility in Oak Creek, Wisconsin. On February 25, 2019, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment because of his race (African-American), sex (male), and reprisal (prior protected EEO activity) when: 1. On July 26, 2018, Complainant was placed in emergency placement by a Supervisor of Distribution Operations (SDO1); 2. On August 11, 2018, Complainant was threatened by a coworker (CW); 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. 2020000617 2 3. On August 13, 2018, Complainant was placed in emergency placement by a District Operations Manager (DOM); 4. On August 23, 2018, another District Operations Supervisor (SDO3) involuntarily reassigned Complainant to another facility and warned him that he would be charged absence without leave (AWOL) if he did not report to that facility; and 5. On December 17, 2018, Complainant was issued a notice of removal by SDO1. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC 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 or reprisal as alleged. Incidents (1) & (3): Complainant received a notice from SDO1 dated July 25, 2018 that he would be placed in emergency off-duty status for allegedly violating the Agency’s policy forbidding sexual harassment in connection with an incident involving CW. IR 128-30, 169-70, 195-98, 247, 419. On August 12, 2018, DOM notified Complainant that he would again be placed in emergency off-duty status, this time for allegedly violating the Agency’s policy against creating a hostile work environment involving another incident with that same coworker, CW. IR 137, 129, 249, 422. According to grievance documents dated January 10, 2019 and February 21, 2019, the actions were rescinded after Complainant was exonerated of any wrongdoing and had received compensation for his time away from duty. IR 164-67, 189, 215, 250, 420, 423, 425. Incident (2): Complainant alleged that on August 11, 2018, CW had accused him of threatening to rape her and throw her down an elevator shaft, and that CW had to be restrained from physically attacking him. IR 133-34, 162-63, 188, 293, 295-96, 303. Although SDO1 averred that he did not recall the details, he did produce a contemporaneous account of the incident. According to SDO1’s written statement, as he was directing Complainant to accompany him to the supervisors’ office, he saw CW acting highly agitated. SDO1 stated that he told both of them that they would be placed in emergency off-duty status. IR 202-07, 248, 543. Another District Operations Supervisor (SDO2) averred that she had to separate Complainant and CW and that she was trying to calm CW down. IR 293 In responding to Complainant’s assertion that CW should have been disciplined, SDO2 averred that CW had claimed to have been threatened by Complainant, and that she was attempting to refer CW to the Employee Assistance Program due to the trauma that CW was exhibiting, which CW herself characterized as a “mental breakdown.” IR 295. Incident (4): Complainant identified a third Distribution Operations Supervisor (SDO3) as the official who signed off on his reassignment. Complainant claimed that he was told by SDO3 to report to the mail processing annex under threat of being marked AWOL if he did not do so. 2020000617 3 He stated that SDO3 told him that the reason for the reassignment was to diffuse the situation between himself and CW, and that the reassignment was “based off completely false allegations.” IR 142-43. SDO3 confirmed that he reassigned Complainant in order to separate him from CW. SDO3 also affirmed that although the reassignment was temporary, Complainant had successfully bid on a permanent assignment at the annex. IR 315-16. A Union Steward confirmed that SDO3 had told Complainant that if he reported to the annex, no further disciplinary action would be taken against him. IR 172. Incident (5): In a memorandum dated December 6, 2018 SDO1 informed Complainant that he would be removed from the Agency on January 11, 2019. The reasons given for the removal action were as follows: On July 22, 2018, after leaving the break room at the Milwaukee P&DC, you stated to Mailhandler [CW] that you would beat her ass. She stated that she wasn’t surprised that you would say that to her because you’ve said this before. You then went on to say that you would rape her. When [CW] asked you why you would say such a thing, you stared at her with no response. She then said “Damn, and the f@#$ed up part about is that you’re probably dead ass serious.” Later on this same day, while in another room with [CW] you commented on throwing [CW] down the freight elevator and that no one would find her. You also told her that you’ve followed her home from work. The Mailhandler Branch President stated that [CW] came to him to report the incidents. She also told him that after leaving the breakroom you bumped into her several times. When given an opportunity to explain your actions, you stated that [CW] approached you and engaged in an inappropriate conversation. You also stated that you changed the subject to avoid saying anything inappropriate to her and that there were several witnesses present. Your responses are unacceptable and your behavior cannot be tolerated or condoned. As a result of your actions, you are being charged with unacceptable conduct /violation of zero tolerance policy. IR 207, 342, 344, 427-28, 435-39, 445-47, 450-51. The removal was grieved and a step 3 grievance decision was issued on March 19, 2019, finding that the Union had failed to present any evidence that the Agency violated any provision of the collective bargaining agreement, and consequently, that the grievance was denied. IR 429. In an initial management inquiry report dated November 5, 2018, the manager conducting the inquiry noted that CW had obtained a 4- year restraining order against Complainant. IR 431. Complainant stated that he was, in fact, removed from service on January 11, 2019. He denied ever threatening CW and maintained that CW’s allegations against him were false. IR 146-49. 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 2020000617 4 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 such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to 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 Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since SDO1 and the other officials named in the complaint articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incidents (1) and (3), SDO1 and DOM had placed Complainant in off- duty status because of reports that Complainant had threatened violence against another employee. As to incident (2), CW appeared to be in a shaken state after her encounter with Complainant on August 11, 2018. Concerning incident (4), SDO3 confirmed that he reassigned Complainant in order to eliminate the potential for future conflicts between Complainant and CW, that the reassignment was intended to be temporary, and that Complainant successfully bid on a permanent assignment at the new location. Regarding incident (5), the notice of removal specified that Complainant had violated the Agency’s zero tolerance policy against workplace violence by making threats to CW on July 22, 2018. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why he believed that his race, sex, and previous EEO activities were factors in the above-referenced incidents, Complainant reiterated his belief that he was being pressured to drop a previous EEO action. IR 131, 135, 144, 149. Beyond Complainant’s own assertions, he has presented neither affidavits, declarations, or unsworn statements, nor documents which contradict or undercut the explanations provided by the various management officials named in the complaint or which cast doubt upon the veracity of these individuals as witnesses. 2020000617 5 We therefore agree with the Agency that the record in this case is insufficient to establish the existence of an unlawful motive attributable to any of the officials named in Complaint No. 1J- 531-0022-19. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must 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 the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2020000617 6 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. 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. 2020000617 7 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 March 8, 2021 Date