[Redacted], Kennith M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2020002073 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kennith M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002073 Agency No. 4G-335-0199-17 DECISION On January 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 20, 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. ISSUE PRESENTED The issue presented is whether Complainant has proved, by a preponderance of the evidence, that the Agency subjected him to harassment and discrimination based on his protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency’s Gulf Winds facility in St. Petersburg, Florida. On November 6, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity when: 1. on August 24, 2017, Complainant was given an investigative interview; and, 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. 2020002073 2 2. on August 24, and 28, 2017, Complainant was charged with Leave Without Pay (LWOP). On November 20, 2017, the Agency informed Complainant that it was accepting the claim that Complainant was discriminated against based on his disability and in reprisal for prior EEO activity in claim 2. However, the Agency dismissed claim 1, finding that Complainant was not aggrieved as to a term or condition of his employment. As such, the Agency dismissed the claim for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). On April 16, 2018, the Agency issued its final Agency decision (FAD) where it concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged in claim 2. As an initial matter, the Agency endorsed the dismissal of claim 1 for failure to state a claim. Complainant appealed that decision to the Commission. In his appeal, Complainant did not contest the Agency’s findings in claim 2, and only argued that claim 1 was improperly dismissed. In Kennith M., v. U.S. Postal Serv., EEOC Appeal No. 0120181864 (July 19, 2019), we addressed Complainant’s appeal of the April 16, 2018 FAD. As Complainant did not contest the findings of claim 2, we chose not to address the matter on appeal. Id. Regarding claim 1, we agreed with Complainant that claim 1 was improperly dismissed for failure to state a claim. Id. The matter was remanded for processing. Id. On August 1, 2019, the Agency acknowledged acceptance of the remanded claim 1 for investigation. The investigative record reflects the following pertinent matters relating to the subject claim. On or about August 23, 2017, Complainant asked his first-line supervisor (S1) if he could arrive to work early on August 24, 2017, so that he could leave early for an appointment. S1 stated that she verbally agreed to the request. S1 did not provide any further details about the request or the interaction afterwards. On August 24, 2017, Complainant came into work early, as was approved by S1. The Supervisor of Customer Service (RMO12) saw that Complainant began work early and initiated an investigative interview with a Union Representative present. RMO1 asserted that he asked Complainant why he was working early, and that Complainant asserted that S1 approved the early start time. RMO1 claimed that he paused the interview and asked S1 about this. RMO1 asserted that S1 denied approving the early start time. The record has no indication of whether S1 was asked of this alleged interaction with RMO1. RMO1 asserted that he never initiated questions about Complainant’s EEO activity. RMO1 noted that his only concern was Complainant’s unauthorized early work start. RMO1 noted that, during the investigative interview, Complainant brought up his prior EEO activity and that it was only then that RMO1 asked Complainant if the EEO complaints were resolved to his satisfaction and if the same events were occurring again. Complainant refuted that statement, denied ever bringing up his own EEO activity, and asserted that it was RMO1 that asked him about his EEO activity three separate times during the investigative interview. Complainant stated that he refused to respond each time. Complainant believed that RMO1 was questioning his EEO activity in an effort to harass, intimidate, and bully him. 2 Responsible Management Official (RMO). 2020002073 3 On August 25, 2017, Complainant asserted that he saw his doctor for stress related to the investigative interview. The doctor provided a medical note for the visit and stated that Complainant would be “totally incapacitated from 8/23/20173 and return on 8/28/2017.” The diagnosis was “emotional distress”. 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). In accordance with Complainant’s request, 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 retaliation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant, through his counsel, asserts that he was clearly retaliated against by RMO1 when he was subjected to repeated questions about his EEO activity during the investigative interview. Complainant asserts that he had several opened and closed EEO matters and that management, including RMO1, was clearly aware of his EEO history. Complainant also refutes RMO1’s statement that he (Complainant) brought up the issue of the EEO activity. Complainant asserts that, despite the Agency’s contentions, this matter is not in equipoise, and that there is no reason to credit RMO1’s statements over Complainant’s. Complainant also notes that a union representative was present during the investigative interview, and yet the individual was not interviewed by the EEO Investigator. Complainant asserts that RMO1’s antagonizing behavior was meant to mock, bully, and intimidate him, and it served its intended purpose as he took sick leave to deal with the adverse emotional reaction. The Agency did not provide an appellate brief. 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”). 3 The photocopy is blurry, and this date is obscured but appeared to notate 8/23/2017. 2020002073 4 ANALYSIS AND FINDINGS Disparate Treatment Discrimination Because Of Reprisal For Complainant to prevail on his claim of disparate treatment, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (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. Co. 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. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the Agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). Assuming, arguendo, that Complainant has established a prima facie case of reprisal discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, RMO1 initiated the investigative interview because he noticed that Complainant began his shift prior to his normal start time. 2020002073 5 There is no evidence that he initiated the investigative interview as a method to question and/or harass Complainant regarding his prior EEO activity. The Commission has previously found that remarks or comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a violation of the law. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (complainant told that filing an EEO suit was "wrong way to go about getting a promotion"); see also Ashby v. Dep't of the Treasury, EEOC Appeal No. 0120090364 (Feb. 27, 2012), request for recon. denied, EEOC Request No. 0520120435 (Jul. 12, 2012) (violation where supervisor mentioned the complainant’s prior EEO activity to a colleague and made inappropriate comments about the complainant’s EEO complaints); Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010) (violation where supervisor commented “what goes around comes around” with respect to EEO complaints that had been filed). However, in this matter, despite Complainant’s assertions on appeal, the matter is in equipoise. In this matter, beyond the Report of Investigation and Complainant’s arguments, Complainant did not present further evidence to support his claim. We note that, upon receipt of the Report of Investigation, Complainant could have raised his concerns that the Union Representative was not interviewed. Complainant could have also entered a statement from the Union Representative into the record at any point. Complainant chose not to take either of those actions. Additionally, Complainant did not request a hearing before an EEOC AJ, and as a result we do not have the benefit of an AJ's credibility determinations of these conflicting statements between Complainant and RMO1. Complainant had to prove, by a preponderance of the evidence, that the allegedly harassing acts occurred, and he did not. Therefore, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet his burden of persuasion. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) (citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012)). Unlawful Harassment Here, 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). As already concluded above, there is no evidence to support a finding that Complainant’s prior EEO activity played any role in RMO1’s decision to initiate an investigative interview, or that RMO1 initiated questions regarding Complainant’s EEO activity. In sum, Complainant failed to prove that his EEO activity played any role in the incidents he proffered as evidence of his harassment claim. 2020002073 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of 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. 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. 2020002073 7 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation