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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000956 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvella B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020000956 Agency No. 4B-020-0012-19 DECISION On October 27, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2019 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Part-Time Flexible (PTF) Rural Carrier at the Agency’s Woburn Post Office in Woburn, Massachusetts. On February 25, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against him based on disability and in reprisal for prior EEO activity (instant case) when: 1. on October 24, 2018, a supervisor insulted Complainant when the supervisor informed him that he was unable to fit all of the packages in his truck; 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. 2020000956 2 2. on October 26, 2018, he was issued a Notice of Removal for Failure to Perform Duties in a Satisfactory Manner, later reduced to a 14-day suspension; 3. on November 30, 2018 and ongoing, his schedule was changed and his hours reduced; 4. on February 14, 2019, his EEO instant case was discussed during a reasonable accommodation meeting and a medically unqualified supervisor deemed him unfit to work and a “safety hazard;” and 5. on February 16, 2019, he was singled out and told that he could no longer case his mail and his supervisor made bullying comments toward him and mentioned his EEO case. Following an investigation, Complainant neither requested a hearing before an EEOC Administrative Judge nor an Agency final decision. On October 15, 2019, the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during its investigation, finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims 2 - 3 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). Complainant identified his disabilities as anxiety, depression, and Attention Deficit Hyperactivity Disorder (ADHD). For purposes of this analysis, we assume, without so finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. 2020000956 3 Regarding claim 2, Complainant alleged that on October 26, 2018, he was issued a Notice of Removal for Failure to Perform Duties in a Satisfactory Manner, later reduced to a 14-day suspension. A Supervisor, Customer Service (“Supervisor 2”) was the deciding official to issue Complainant a Notice of Removal for Failure to Perform Duties in a Satisfactory Manner effective November 27, 2018. Specifically, she stated that on September 27, 2018, Complainant reported that he had sideswiped a telephone pole with his postal vehicle while making a right turn. The record contains a copy of Complainant’s Notice of Removal dated October 26, 2018. Therein, Supervisor 2 indicated that her investigation indicated that the accident was an error on Complainant’s part where he misjudged the clearance between his vehicle and a telephone pole Supervisor 2 noted that this was not the first accident Complainant had been in involved misjudging clearances. Specifically, Supervisor 2 stated that in May 2018, Complainant was involved in an accident where he crossed over the double yellow line which resulted in damage to his vehicle and another vehicle. Supervisor 2 determined that Complainant had not taken advantage of efforts to correct his performance, and that his most recent accident was serious. In addition, Supervisor 2 determined that Complainant violated the following sections of the Employee and Labor Relations Manual (ELM): Section 665.13 “Discharge of Duties,” and 814.2 “Employee Responsibilities.” Complainant filed a grievance over the removal. As a result, the grievance was settled when the Agency and union agreed to reduce the Notice of Removal to a 14-Day Suspension. Regarding claim 3, Complainant alleged that on November 30, 2018 and ongoing, his schedule was changed and his hours reduced, Supervisor 2 denied reducing his hours. She noted that Complainant bid on the PTF assignment in September 2018, in which he was dedicated to covering two routes and was guaranteed those two days each week. She stated that if there was a day when another route was open, Complainant was also assigned to work that route if he wanted. In both claims, Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for the disputed actions were a pretext designed to mask discriminatory motivations. The proposed removal and effectuated suspension resulted directly from an accident Complainant had with a postal vehicle, which was not his first accident, and Complainant’s schedule and hours were established by the position for which he bid. There is simply no evidence to suggest that discrimination played a role in these events. Harassment To prove his harassment 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 disability or unlawful retaliation. 2020000956 4 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 Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In claim 1, Complainant asserted that on October 24, 2018, a supervisor insulted him when he informed him that he was unable to fit all of the packages in his truck. The Supervisor, Customer Service (“Supervisor 1”) denied insulting Complainant. He explained that Complainant was the one that approached him and mentioned that he could not fit all of his parcels in his vehicle. As a result, Complainant stated that he would need to leave several parcels behind. The supervisor stated that there were no additional workers to perform this work, so he went outside to check Complainant’s truck. He stated after moving several parcels around, he was able to fit all of the parcels in Complainant’s truck. Furthermore, the supervisor reminded Complainant that he was required to load his vehicle effectively and take all the parcels and mail for his route. Complainant has not provided any evidence to dispute Supervisor 1’s testimony regarding this event. In claims 4 and 5, Complainant essentially argues that Supervisors 1 and 2 attempted to intimidate him for filing his EEO complaint over the attempt to remove him and interfere with his pursuit of that complaint when his complaint was discussed during a reasonable accommodation meeting and a medically unqualified supervisor deemed him unfit to work and a “safety hazard” (claim 4), and on February 16, 2019, he was singled out and told that he could no longer case his mail and his supervisor made bullying comments toward him and mentioned his EEO case (claim 5). See Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Supervisor 1 stated that he does not recall Complainant’s EEO case being discussed during the reasonable accommodation committee meeting on February 14, 2019. The supervisor stated that the meeting was run by a Labor Relations Specialist and the District Nurse along with Complainant, his attorney, an Agency attorney, Supervisor 2 and himself. The supervisor asserted that Complainant was not singled out and was not told that he could no longer case his mail and denied making bullying comments to him. The supervisor stated that, on the contrary, when Complainant was handed instructions in writing, he crumpled the paper and threw it in the trash, stating “this is f***ing ridiculous” as he walked away. Again, the supervisor asserted that he did not mention Complainant’s EEO case. Supervisor 2 claimed that she does not recall Complainant’s EEO case being discussed during the February 14, 2019 meeting. In addition, she claimed she did not mention Complainant’s EEO case on February 16, 2019. Although there were others at the meeting in question, Complainant has not produced evidence to rebut the supervisors’ denials. As such, we conclude that the evidence is, at best, in equipoise and Complainant has failed to meet his ultimate burden of proving unlawful retaliation occurred. 2020000956 5 CONCLUSION We AFFIRM the Agency’s final decision because the ponderance of the evidence of record does not establish that discrimination or unlawful retaliation 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. 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. 2020000956 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 June 3, 2021 Date