[Redacted], Jarrett C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

May 11, 2022

Appeal No. 2021001619 (E.E.O.C. May. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarrett C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001619 Hearing No. 460-2019-00218X Agency No. 4G-770-0267-18 DECISION On December 17, 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 November 10, 2020, final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor Customer Service, Grade EAS- 17, at the Agency’s Humble-Kingwood Station in Texas. Complainant’s supervisor was the Station Manager (female, African-American, Black, ager 58, other EEO statuses unknown). On November 17, 2018, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him based on sex, (male), race (Caucasian), color 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 2021001619 (white), physical disability (Jones Fracture of right foot), age (63), and in reprisal for prior protected EEO activity (numerous complaints) : 1. From June 18, 2018 and ongoing Complainant has been worked without a schedule and his days off were changed arbitrarily by management; 2. From June 18, 2018 and ongoing, Complainant has been worked outside of his medical restrictions; 3. On June 18, 2018, the Station Manager broke her agreement to staff a dispatch clerk; 4. On June 18, 2018 the Station Manager did not inform Complainant of a threat of violence against management; 5. On June 18, 2018 Complainant learned that the Station Manager was falsifying clock rings and that she had informed a clerk that Complainant deliberately screwed up the clerk's clock rings; 6. On June 28, 2018, Complainant discovered he was charged sick leave for his vacation time; 7. On June 29, 2018 the Station Manager solicited statements against Complainant from co- workers; 8. On June 30, 2018, Complainant was the only one required to work on PS Form 4240; 9. On July 14, 2018, Complainant was issued a Letter of Warning; 10. On July 11, 2018, Complainant was given a new modified assignment, but management failed to provide him with a completed copy. On July 14, 2018, he requested a schedule for the time allotted for certain duties according to the modified job offer but his request was not honored; 11. On July 18, 2018, Complainant was called into the Station Manager 's office and threatened with discipline; 12. On July 18, 2018 and ongoing, Complainant was required to work late, off the clock and skip his breaks to keep up with the workload; 13. On August 1, 2018, Complainant discovered that his pay code has been improperly entered resulting in loss of pay; 14. On August 7, 2018, Complainant discovered eight hours of his leave had been taken without his permission; 15. On August 10, 2018, Complainant was given an investigative interview for events which occurred on August 4, 2018; 16. On August 12, 2018, Complainant was accused of causing building equipment malfunctions; 17. On September 10, 2018, Complainant met with the Station Manager to fix his paycheck errors and she insisted on getting the cross-foot wrong. Subsequently she failed to meet with Complainant on later dates to resolve the pay adjustments and on September 27, 2018 the Station Manager blamed Complainant for the paycheck errors; 18. On September 14, 2018, Complainant's request for annual leave during Columbus Day weekend was denied; 19. On September 20, 2018, Complainant was given a pre-disciplinary interview; 20. On September 21, 2018, Complainant was assigned the Station Manager's union requests and she limited Complainant to 6 hours and refused to remove any of his other responsibilities so that Complainant could complete the task; 3 2021001619 21. On September 27, 2018 the Station Manager gave Complainant 5 days to finish a union documentation request without the time or information required; 22. On October 1, 2018, the Station Manager told Complainant to change his off-days rather than grant his annual leave request for the upcoming weekend; 23. On October 1, 2018, Complainant received a pay stub which indicated that his annual leave balance had been reduced; 24. On October 15, 2018, the Station Manager requested another copy of Complainant's medical restrictions after she had failed to properly secure such prior submissions of his medical documentation; 25. On October 23, 2018, Complainant was issued a Letter of Warning; 26. On November 19, 2018, the Station Manager accused Complainant of losing a vehicle that was checked in; 27. On November 4, 2018, and other dates, the Station Manager complained about Complainant's not completing the PS Forms 4240; 28. On November 21, 2018, and other dates, the Station Manager constantly texted and called him, while she does not bother to read Complainant's texts; 29. On November 30, 2018, Complainant's schedule was changed for him to work on Sunday at 10AM with less the 48-hours’ notice being provided to him; 30. In early December 2018, Complainant's request for leave on the weekend was denied; 31. On December 1, 2018, Complainant became aware that the Station Manager did not properly enter his time, causing him to be shorted a day's pay; 32. On December 3, 2018, December 10, 2018, and December 12, 2018, the Station Manager told Complainant that he had a Pre-Disciplinary Interview coming; 33. On December 19, 2018, Complainant was the last person allowed to request leave for the upcoming year on the leave roster; 34. On December 21, 2018, the Station Manager asked Complainant a question on telecom, spoke over Complainant’s answer, and instructed him to clear all carriers despite being informed that the software to do so was not working properly; 35. On December 23, 2018, Complainant became aware that the Station Manager had changed his permanent days off in the Time and Attendance Collection System (TACS); 36. On January 6, 2019, the Station Manager told Complainant that she would remove a carrier that had cursed at Complainant on the workroom floor, but no discipline has been issued to the carrier; 37. On February 6, 2019, Complainant became aware that he should have been out-of-schedule overtime for the days he was forced to work outside of his tour by the Station Manager; 38. On February 10, 2019, because a schedule had not been made, Complainant reported for work, only to be told that he was not needed that day; 39. On February 18, 2019, Complainant was forced to sign a change of schedule form; 40. On February 18, 2019, the Station Manager sent Complainant an email asking what he was going to do to address the poor performance of a carrier when it should be the Station Manager's responsibility to issue discipline. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 4 2021001619 On April 14, 2020, the AJ issued an order scheduling a teleconference on May 7, 2020. Complainant failed to call in and did not respond to the AJ’s efforts to make contact via phone or email. As a result, on May 7, 2020, the AJ issued an order to show cause directing Complainant to explain his failure to appear for the scheduled teleconference. Complainant did not respond to the AJ’s order to show cause before the May 22, 2020 deadline. As a sanction for Complainant’s non-compliance with her orders, on October 7, 2020, the AJ dismissed Complainant’s request for a hearing and remanded the matter to the Agency for a final decision. The Agency issued the instant final decision, finding no discrimination. The instant appeal followed. On appeal, Complainant contends that the investigation was insufficient. In particular, Complainant states that the Agency should have interviewed those who witnessed the Station Manager issuing disciplinary action and punishing him for seeking a reasonable accommodation. Complainant maintains that the Station Manager favored African Americans and targeted him because of his race and because he had questioned whether the Station Manager was overworking contract postal support employees. According to Complainant, the Station Manager overburdened him and set him up to fail by expecting him to accomplish eight hours of work despite his having six-hour-limited workdays. 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). We first examine the AJ’s decision to remand the matter to the Agency for a final decision. The Commission gives AJs “full responsibility for the adjudication of the complaint, including overseeing the development of the record.” 29 C.F.R. § 1614.109(a). During the hearing stage, an AJ ensures the integrity and efficiency of the administrative process. In executing such responsibility, an AJ is authorized, among other things, to “impose appropriate sanctions on parties who fail to comply with orders or requests.” EEO MD-110 at Ch. 7, § III(D). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016). The Commission has held that sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party. Rountree v. Dep’t of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). 5 2021001619 The factors relevant to “tailoring” a sanction, or determining whether a sanction is, in fact, warranted include: 1) the extent and nature of the non-compliance, including justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any, and (4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). We concur with the AJ, through failure to appear at the initial conference and then and failure to respond to the order to show cause, Complainant has abandoned his claims, prejudicially wasted the Agency’s time and demonstrated a lack of respect toward the Commission’s adjudicative process. Therefore, we find that the AJ’s sanction was appropriate tailored and was not an abuse of discretion. We now review the merits of the final Agency decision. We analyze Complainant’s formal complaint in the context of disparate treatment and hostile work environment. To prevail on a disparate treatment claim, Complainant must satisfy the three- part evidentiary scheme from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must first 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. See Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978). The second burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext to mask prohibited motives. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). Assuming arguendo that Complainant has proved the prima facie case for discrimination or unlawful retaliation, we determine that the Agency has articulated legitimate, non-discriminatory reasons to explain its actions. The record revealed no animus to Complainant’s disability. To the contrary, the record revealed that Complainant was reasonably accommodated with a limited-duty status that restricted him to no more than six hours of work each day. The Station Manager attributed Complainant’s complaints about his work schedule to the fact that Complainant was a manager and his duty days were rotated among the three managers at Humble-Kingwood Station. The Station Manager stated that, on certain days, she had to adjust staffing at the last minute because package volume was lower or higher than expected. Regarding Complainant’s claim that the Agency did not disclose to that an employee had made a threat at Humble-Kingwood Station, the Station Manager explained that that particular employee had wished harm only upon the Station Manager specifically as opposed to all managers at their facility. Concerning Complainant’s claim that the Agency wrongfully blamed and excessively punished him for mail that went undelivered, we observed that the Agency reduced the 14-day suspension to a letter of warning. While the record contains testimonial evidence that supports the Agency’s stated reason for its adverse actions, Complainant has not shown that any of the Agency’s proffered reasons were pretexts to mask discrimination. In other words, Complainant has not proved that the Agency’s explanations contain glaring weaknesses, inconsistencies, or contradictions that make them rationally unworthy of credence. 6 2021001619 Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Beyond his own speculative beliefs, Complainant has not evidenced that the Agency's stated reasons were pretextual or that the Agency's actions were motivated by discriminatory animus. Mere assertions or conjecture that the Agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). Complainant has not offered any corroboration evidence in support of his allegations that the Agency took adverse action against him based on discriminatory animus. Because evidence of the Agency having any discriminatory motive is lacking, we cannot find that Complainant was subjected to a hostile work environment based on his EEO protected characteristics. Consequently, his harassment claims also fail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the final Agency 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 7 2021001619 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. 8 2021001619 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 May 11, 2022 Date