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

Equal Employment Opportunity Commission

Feb 28, 2023

Appeal No. 2022001618 (E.E.O.C. Feb. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lupe M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2022001618 Agency No. 4J-630-0187-20 DECISION On January 28, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 6, 2022 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., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Customer Services at the Agency’s Clayton Branch in St. Louis, Missouri. On December 1, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (African American), sex (male), genetic information (unspecified) and in reprisal for prior protected EEO activity when: 1. On October 2, 2019, a manager told Complainant that he would always treat him differently than his peers; 2. Complainant was made to perform duties that his peers were not made to perform; 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. 2022001618 2 3. Complainant was held accountable for things his peers were not held accountable for; 4. On July 15, 2020, Complainant was told to provide medical documentation and request a reasonable accommodation; and 5. On July 16, 2020, Complainant’s work schedule was changed. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. 2022001618 3 Regarding claims 1-3, the Manager, Customer Services (Manager) (African American, male) stated that Complainant volunteered for the assignments (i.e. letters of warning, 3999s, parcels, carriers not delivering mail, attendance) that he is now complaining about. He also recalled Complainant would brag about how much better he (Complainant) was than the other supervisors. With respect to Complainant’s assertion that the Manager told him that he would always treat him differently than his peers or that he was made to perform duties that his peers were not made to perform, the Manager denied these assertions was true. The Manager also denied Complainant’s claim that he was held accountable for things his peers were not held accountable for. The Manager said that when Complainant volunteered for a task, he was expected to complete it. Concerning claim 4, the record shows that following Complainant informing management that he could not perform all the duties of his position, an Agency manager instructed him to provide medical documentation and to request a reasonable accommodation.2 The Agency manager did not recall whether Complainant ever requested a reasonable accommodation. However, he stated that because Complainant asserted that he was unable to “perform 3999s”,3 he was no longer required to do so. This was confirmed by the Manager, Customer Services Operations (African American, female). An Agency Labor Relations Specialist asserted that he received a July 20, 2020 email from Complainant. Therein, Complainant noted that an Agency manager had stated that Complainant needed a reasonable accommodation because of Complainant’s inability to perform 3999s. Complainant noted further that he had had restrictions since October 2019, but that such restrictions were not permanent. He also stated that he was returning to work after contracting Covid-19 and that he had lingering lung, respiratory, and high blood pressure issues, as well as a return of diabetes. The Labor Relations Specialist responded to Complainant’s July 20, 2020 email. Therein, she informed Complainant that all Covid-19 documentation must be reviewed by the Occupational Health Nurse Administrator. She stated further that Complainant was nevertheless provided with temporary accommodations. Given the circumstances of this claim, we determine that Complainant was neither denied a reasonable accommodation or subjected to an action motivated by discriminatory animus with regard to this matter. Regarding claim 5, Complainant alleged that on July 16, 2020, his work schedule was changed. The Manager he does not recall why he changed Complainant’s work schedule for that date. However, whatever prompted the work schedule change, Complainant did not provide any evidence to support a determination that this change was prompted by discriminatory animus. 2 We note that Complainant did not claim a denial of reasonable accommodation under the Rehabilitation Act. 3 The PS Form 3999 is an internal agency form used for conducting mail counts or walking route evaluations. 2022001618 4 For all these claims, beyond his bare assertations, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons for the disputed actions proffered by management witnesses were actually a pretext designed to mask the true discriminatory motivation. Harassment/Hostile Work Environment To prove his harassment/hostile work environment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc,. 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift System Inc,. EEOC Notice No. 915.002 (March 8, 1994). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the Manager was motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley vs. U.S. Postal Service, EEOC Appeal No. 019822923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2022001618 5 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. 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. 2022001618 6 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 February 28, 2023 Date