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

Equal Employment Opportunity Commission

Oct 21, 2021

Appeal No. 2020003553 (E.E.O.C. Oct. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Miles T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003553 Agency No. 1J-531-0081-19 DECISION On May 26, 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 April 27, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Processing & Distribution Center in Madison, Wisconsin. Complainant experiences complications from asthma and severe allergies to ragweed and dust mites, which make it difficult for him to breathe at work. Thus, Complainant regularly wears an N95 mask. Complainant contends that, on April 27, 2019, the Supervisor of Distribution Operations (SDO) handed him a piece of paper that contained instructions for using dust masks. Sometime in the following two weeks, SDO held a service talk on respirators and dust masks. Complainant felt singled out because he was the only employee at the talk wearing a dust mask. Complainant conceded that he is uncertain whether SDO acted alone or “was encouraged by other 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. 2020003553 2 management officials to humiliate [him] for wearing a dust mask.” Complainant also noted that SDO never told him directly that she had an issue with him wearing a dust mask. In June 2019, Complainant complained to his union representative about the service talk; Complainant said that he told the union representative SDO was harassing him for using a dust mask. On June 20, 2019, Complainant, his wife (also an Agency employee), and the union representative met with the Plant Manager (PM) to raise his allegations. In this meeting, Complainant’s wife and the union steward urged PM to not appoint SDO as the permanent Manager of Distribution Operations (MDO). Complainant contended that PM said he would discuss the matter with SDO but would not be able to keep it anonymous since Complainant’s use of a dust mask was obvious. Complainant claimed that he was retaliated against shortly after SDO learned she was not selected for the MDO position. PM recalled meeting with Complainant’s wife, who “said things to the effect that she felt that [SDO] was singling out her husband.” PM did not recall Complainant’s wife using terms that indicated harassment was taking place. SDO testified that the management team directed her to hold a service talk regarding the use of a respirator, based on instructions from safety management outside of the facility. As part of the talk, SDO informed all employees that the Agency would provide a dust mask if any employee needed one. SDO said she had no problem with Complainant’s use of a dust mask. SDO added that she gave the same service talk to other areas under her supervision and in other facilities. On August 1, 2019, Complainant alleged he was walked out of the facility based on a fabricated allegation by SDO. Complainant argued that days after SDO learned she was not selected for the MDO position, SDO alleged that Complainant had assaulted her after she entered Complainant’s workspace. SDO then used this allegation as the basis for a 14-Day Suspension. Complainant claimed that he warned SDO to stay out of his way during a mail sorting process operation to protect against injury. As a result of his warning, SDO walked him out of the building. In response, SDO said that Complainant hit her twice on her buttocks with an empty tray. According to SDO and the 14-Day Suspension Notice, SDO confronted Complainant, who said to get out of his way. When SDO reported to PM that she sent Complainant home, PM said that Complainant’s wife had complained about the dust mask service talk. SDO insists that PM did not discuss the MDO selection process. Accordingly, SDO’s potential promotion had nothing to do with sending Complainant home. PM confirmed that he spoke with SDO about Complainant wearing a mask. The 14-Day Suspension was rescinded following a union grievance. Complainant contends that the rescission itself constitutes evidence that the suspension was discriminatory. SDO affirmed she was told that the suspension was rescinded because it was her word against Complainant’s word, and that was insufficient to uphold the suspension. 2020003553 3 Complainant raised further allegations of a hostile work environment. In one incident, on September 26, 2019, Complainant claimed that SDO provided him an incomplete PS Form 3971 for his signature. The form did not indicate whether it was approved. On September 27, 2019, SDO, and the Manager of Distribution Operations, intruded into Complainant’s workspace while a sorting process operation was in process. Complainant objected that SDO physically entered his workspace, which he needs to be empty to do his job. On that day, SDO presented Complainant with a PS Form 4589, Observation of Work Practices - General, asserting that Complainant blocked exit routes. Complainant argued that SDO was too far from the exit routes to ascertain whether they were truly blocked. SDO asserted that some employees complain that she does not fill out Forms 3971 appropriately, but she does not share that opinion. SDO acknowledged that she presented the form to Complainant to sign before she marked the Family Medical Leave Act (FMLA) leave approval box but noted that his absence was already approved through the Agency’s electronic database. Although Complainant refused to sign the form, SDO finalized the form. Further, SDO does not recall Complainant saying that she invaded his personal space and denied that she violated his personal space. SDO also asserted that Complainant had arranged the equipment in a way that created a safety hazard, which resulted in the Form 4589. On November 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (allergies and respiratory issues) and in reprisal for prior protected EEO activity when: 1. In or around April or May 2019, Complainant was singled out at a tour talk for use of his dust mask; 2. on August 1, 2019, Complainant was walked out of the facility; 3. since August 1, 2019, a manager intruded into his work and personal space, confronted him with unreasonable demands, supervised him in a critical and punitive manner, tried to make him sign an incomplete work slip, and told coworkers about his personal business; and 4. on August 26, 2019, Complainant was issued a 14-Day Suspension. 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). In the decision, the Agency concluded that Complainant failed to prove that management subjected him to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues the Agency’s findings are incorrect as a matter of law and maintains that he was discriminated against as alleged. Among other arguments, Complainant insists that SDO retaliated against him and his spouse for complaining about SDO. 2020003553 4 Although SDO maintains she did not know Complainant sought to prevent her promotion to manager, Complainant argues that the close temporal proximity between his complaint and SDO’s actions warrant a finding of reprisal. Moreover, Complainant contends that he has proven discrimination and harassment because the rescission of his 14-Day Suspension demonstrates that SDO fabricated her allegation of assault. Accordingly, Complainant requests that the Commission reverse the final decision. 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). 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant 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. Corp. 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. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, we assume that Complainant has established a prima facie case of discrimination and reprisal. As described in detail above, SDO articulated legitimate, non-discriminatory reasons for each of her actions. SDO held a service talk on dust masks based on orders from her supervisors and asserted that she held these talks in numerous locations, not just at Complainant’s facility. SDO also asserted that Complainant hit her on the buttocks twice and that she believed the act to be deliberate. Therefore, she walked Complainant out of the facility and then issued him a 14-Day Suspension. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020003553 5 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. In this case, Complainant does not carry his burden. Complainant’s speculative arguments that the service talk was discriminatory or that the rescission of the suspension through the grievance process constitutes pretext are insufficient. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. 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 class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. 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). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Accordingly, we find that Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2020003553 6 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. 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). 2020003553 7 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 October 21, 2021 Date