[Redacted], Mervin D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001422 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mervin D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020001422 Hearing No. 480-2018-00275X Agency No. 4F-920-0129-17 DECISION On November 29, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 31, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq Complainant worked as a Sales & Service Distribution Associate, PS-06, at the Agency’s Post Office in Lake Arrowhead, California. On June 20, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (LGBTQ - male)2, age (65), and in reprisal for prior protected EEO activity when: 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 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020001422 2 1. On May 4, 2017, the Postmaster (PM) questioned Complainant about his EEO complaints; 2. On May 4, 2017, PM told Complainant that he was going to take away his bid; 3. On May 1, 2017, PM questioned Complainant about his medical restrictions and condition; 4. On May 9, 2017, a Labor Relations Specialist (LRS) contacted Complainant’s union in an attempt to obtain his medical information; 5. On May 16, 2017, the LRS attempted to question Complainant about his EEO complaints without his EEO Representative present; 6. Since May 18, 2017, PM subjected Complainant to a hostile work environment by ordering him not to perform some of his primary work duties, reprimanding him on the workroom floor in front of his coworkers, and generally harassing him; 7. On June 13, 2017, Complainant was put on Emergency Placement in an off-duty status without pay and later given an investigative interview and issued a notice of 14-day suspension on or about July 6, 2017; 8. On June 22, 2017, PM informed Complainant that he would be changing his days off from Wednesday/Sunday to Saturday/Sunday; 9. On June 23, 2017, PM scheduled Complainant for window training in July that conflicted with his prior annual leave request; 10. On June 26, 2017, PM refused Complainant’s request to provide him with a postal vehicle for his use to attend window training scheduled for June 28, 2917; 11. On June 27, 2017, Complainant was given an investigative interview, and subsequently, on June 29, 2017, he was issued a notice of a 7-day suspension; 12. On August 8, 2017, Complainant’s Family Medical Leave Act (FMLA) coverage was denied after being previously approved on or about July 17, 2017; 13. On unspecified dates, Complainant’s request for leave on July 6, 2017, August 23, 2017; and September 21 - October 6, 2017 were all denied; 14. On unspecified dates in August and September 2017, PM scheduled Complainant for training dates that were in conflict with his medical appointments or scheduled leave while scheduling postal transportation or a vehicle to use to attend his training; 2020001422 3 15. On August 16, 2017, Complainant was escorted out of the office and placed in an leave without pay (LWOP) status until August 28, 2017; 16. On August 28, 2017, when Complainant returned to work, he became aware that his tools and notes that he used for his job had been removed and discarded; 17. On September 7, 2017, Complainant was charged with 8 hours of annual leave rather than the sick leave that he requested; 18. On September 18, 2017, PM asked him to provide his confidential medical files to him; 19. On September 20, 2017, Complainant was placed in absent without leave (AWOL) status; and 20. On September 21, 2017, the Post Office Operations Manager (POOM) failed to correct erroneous wage entries that were aimed at him. Following an 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). Complainant requested a hearing, but the AJ dismissed the hearing request and remanded the matter to the Agency for a final agency decision. The Agency thereupon issued its final decision in which it found that the record did not support Complainant’s claim of discrimination, reprisal, or a hostile work environment. The instant appeal followed. ANALYSIS AND FINDINGS 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the PM and the other officials named in the complaint had 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 respect to incident (7), for example, the PM averred that Complainant was publicly and repeatedly insubordinate in refusing to obey the PM’s order to return to the workroom floor, and that customers were present when this was occurring. Complainant was issued a 14-day suspension for unacceptable conduct for the incident. The suspension was later reduced to seven days. 2020001422 4 Regarding incident (8), the PM averred that he discussed the matter with Complainant but never changed Complainant’s days off due to staffing shortages. As to incident (9), the PM affirmed that he scheduled Complainant for window training based upon the needs of the service and that the scheduled training did not conflict with Complainant’s scheduled annual leave. With regard to incident (10), the PM averred that he had consulted with an LRS who advised him that the Agency was under no obligation to provide a postal vehicle for Complainant to drive to the training location. As to claim (11), Complainant was given an investigative interview and later a seven-day no-time off suspension after he failed to follow the instructions of his supervisor on June 27, 2017. The suspension was later reduced to a letter of warning. Regarding incident (12), the record reveals that Complainant’s FMLA request was not approved because he failed to submit the requested documentation in support. Likewise, the record supports that medical documentation in support of his leave requests in claim (13) were not submitted. As to claims (14) and (15), the PM again noted that Complainant was not entitled to transportation to training and Complainant failed to provide any documentation demonstrating that the training conflicted with medical appointments. Ultimately, Complainant did not attend the training and reported to the Lake Arrowhead Post Office when training was scheduled. Complainant was escorted out of the facility and charged with LWOP. Regarding claim (16), the PM affirmed that when Complainant returned to work, his desk had been moved closer to the computer he used for administrative box work, but he was not made aware that Complainant’s tools and notes were removed or discarded. With respect to claim (17), the PM asserted that Complainant was mistakenly charged the wrong leave, but it was corrected as requested. As to incidents (18) and (19), the PM explained that he asked Complainant for medical documentation in support of his request for two weeks of sick leave. Complainant failed to provide the requested documentation and was charged AWOL. Finally, regarding incident (20), the POOM affirmed that she was not informed of any erroneous wage entries for Complainant nor did she have any discussions with Complainant about this issue. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by the responding management officials are pretexts for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor 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). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2020001422 5 Complainant presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which demonstrate the existence of any of the indicators of pretext listed above, which contradict or undercut the explanations of the PM or the other management officials, or which otherwise cast doubt upon the veracity of these individuals as witnesses. We therefore agree with the Agency that Complainant has not shown that he had been subjected to discrimination or reprisal. Hostile Work Environment To establish a hostile work environment claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998). Therefore, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on his protected classes, management officials subjected him to a hostile work environment. However, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency’s actions, as discussed more fully above. Specifically, as to claims (1) and (5), both the PM and LRS denied questioning Complainant about his EEO activity. LRS noted that she did question Complainant regarding a separate non- EEO related investigation. Complainant presented no corroborating evidence indicating that anyone questioned him about his EEO activity. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that he was subjected to discrimination, reprisal, or a hostile work environment as alleged. 2020001422 6 Finally, to the extent that Complainant alleged that officials may have improperly disclosed his confidential medical information, the Rehabilitation Act specifically prohibits the disclosure of medical information except in certain limited situations. Enforcement Guidance on Reasonable Accommodation, Question 42 (rev. Oct. 17, 2002). The Commission has articulated limited exceptions to the Rehabilitation Act's confidentiality requirements, and Agency officials may share confidential medical information about an employee with other Agency officials on a “need-to-know” basis, if doing so is necessary to ensure compliance with the Rehabilitation Act. See Skarica v. Dep't of Homeland Sec., EEOC Appeal No. 0120073399 (Mar. 5, 2010). Here, there is no evidence demonstrating that Complainant's confidential medical information was improperly disclosed. The record reveals that an LRS was assisting the new Lake Arrowhead PM obtain information to ensure that Complainant was not worked outside of his medical restrictions. The record supports that only individuals with a need-to-know basis had any access to Complainant's confidential medical information. There is no evidence that Complainant's confidential medical information was disclosed to anyone or was otherwise accessed improperly. Accordingly, the Commission finds that Agency officials did not unlawfully disclose any confidential medical information in violation of the Rehabilitation Act. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or reprisal 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). 2020001422 7 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. 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. 2020001422 8 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 August 3, 2021 Date