[Redacted], Nathanial E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020000399 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathanial E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000399 Agency No. 4G-350-0047-18 DECISION On September 17, 2019, 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 September 5, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a City Carrier, Q-01, at the Agency’s Mobile- Springhill Station in Mobile, Alabama. On March 15, 2018, Complainant filed a formal complaint, claiming that the Agency discriminated against him based on disability (back injury), age (54), and in reprisal for prior protected EEO activity (Agency Nos. 4G-350-0158-16 and 4G-350-0187-17), 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. 2020000399 2 1. he was denied Family and Medical Leave Act (FMLA) coverage; 2 2. on August 9 - 19, 2017, he was placed off the clock in an off-duty without pay status; 3. on or about August 29, 2017, Complainant was issued a 14-day No-Time Off Suspension; 4. on December 9, 2017, he was placed off the clock; 5. on December 11, 2017, management would not accept Complainant’s documentation returning him to work; 6. on or about February 7, 2018, he was issued a 7-day suspension;3 7. on September 3, October 25, November 22, 2017, January 4, 26, February 26, March 8, April 12-13, 25, and May 7, 2018, Complainant was instructed to leave work before the end of his 8-hour shift; 8. on an unspecified date, after submitting PS Form 3996, Carrier Auxiliary Control forms, Complainant’s manager made unacceptable comments, and threatened him; 9. on an unspecified date, Complainant received disciplinary action; and 10. on May 17, 2018, after submitting two PS Forms 1767, Report of Hazard, Unsafe Conditions or Practice, Complainant did not receive a copy or response. After an 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). Complainant requested a hearing, but after the AJ determined that Complainant had failed to fully cooperate with the Agency and with the AJ’s Order, the AJ remanded the formal complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b, finding no discrimination. 2 The Agency dismissed Claim 1, that Complainant was denied FMLA coverage, in a decision dated April 19, 2018. The record does not reflect any appeal from Complainant to the dismissal of Claim 1. 3 The record reflects that Complainant withdrew Claim 6. 2020000399 3 The instant appeal followed. On appeal, Complainant states that the Agency issued its final decision under an amended file number, instead of the original one. He avers that the Agency used conflicting dates to support its claims of nondiscriminatory behavior. He also argues that the Agency erred in its determination that discrimination and harassment did not occur. Complainant further states that the Agency failed to provide information regarding the rescinded disciplinary actions for poor performance. Finally, Complainant avers that he was unable to comply with the AJ’s order due to illness. ANALYSIS AND FINDINGS First, we have reviewed the AJ’s Order dismissing the hearing request and discern no improprieties in the AJ’s actions. The AJ’s decision to dismiss the hearing request is supported by the record. Second, we note that the Agency determined that claims 2, 3 and “part of claim 7” were untimely raised with an EEO Counselor. The Agency determined further that claims 8 and 9 were untimely raised with an EEO Counselor, as Complainant had not specified upon which date they had occurred. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. It is undisputed that Complainant’s initial contact with an EEO counselor regarding the matters comprising his complaint was on December 9, 2017. This was beyond the 45-day limitation period from claims 2, 3 and some of the incidents comprising claim 7. Therefore, the Agency correctly determined these incidents should be dismissed as independent claims of discrimination. Therefore, the Agency correctly determined that claims 4, 5 and parts of 7 constituted discrete acts, timely raised with an EEO Counselor, and should be considered in a disparate treatment analysis. As such, we will consider claims 4, 5, and 7 in the context of a disparate treatment analysis, and then proceed to consider the remaining claims, along with claims 4, 5, and 7 in the context of a broader harassment claim. Disparate Treatment: Claims 4, 5 and 7 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 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). 2020000399 4 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 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). Regarding Claim 4, Complainant stated that, on December 9, 2017, he was placed off the clock. The Agency Manager testified that, when carriers come back early, the practice is for the carrier to punch out and leave for the day. When this happens, as was the case with Complainant on the date in question, management does not place the carrier in “off clock” status. The Manager further testified that he was unaware of Complainant being put in “off clock” status. Complainant testified that the Manager was responsible for placing him on “off clock” status on December 9, 2017. Complainant does not address this incident on appeal and there is no evidence to support his assertions that management placed him on off clock status. In Claim 5, Complainant stated that on December 11, 2017, management would not accept his documentation to return to work. The Manager and the Postmaster both testified that they were unaware of the details of this incident. Complainant does not address this incident on appeal. With regard to Claim 7, Complainant stated that on numerous dates he was instructed to leave work before the end of his 8-hour shift. The Manager testified that Complainant chose to leave prior to the end of his 8-hour shift and he was unaware of any instructions for Complainant to do so. The record demonstrates that Complainant was placed on LWOP for some portion of the dates indicated. Complainant does not address these incidents on appeal. As noted above, Complainant does not address any of the incidents in Claims 4, 5, and 7 on appeal. After careful review of the record, we conclude that Complainant failed to establish, by a preponderance of the evidence, that these events occurred as alleged and/or the Agency’s articulated legitimate, nondiscriminatory rationale was a pretext for discrimination. Harassment To establish a claim of harassment 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. 2020000399 5 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). Claims 2 and 3 In its decision, with regard to claim 2, the Agency stated that the record indicated that Complainant worked 8 hours on August 9, 2017 and was on leave without pay (LWOP) status from August 10 through August 18, 2017. While Complainant indicated the incorrect dates for this claim, the mistake does not preclude this claim as the record demonstrates the correct dates. Complainant asserted that he believed his age was a factor because his performance was always compared to younger workers, and that his medical condition was a factor because of management attempts to deny him the means to get medical treatment. Moreover, he believed that reprisal was a factor because he endured continued write-ups and threats since prior EEO activity. The Agency found, however, that although Complainant cited various comparators outside of his protected groups, the record contained no evidence, other than his bare assertions, that the comparators faced similar situations, resulting in different management treatment. Moreover, an Agency Manager stated that Complainant had problems with following simple instructions, along with insubordination. The Manager stated further that Complainant was not put off the clock after submitting FMLA-protected leave requests. Regarding Claim 3, the Manager testified that the 14-Day No Time Off Suspension was issued to correct performance issues, for which he had two years of data. He also again reiterated that Complainant had problems with insubordination. He testified that he was not aware of all the specifics of the discipline for the comparators Complainant provided. However, he stated that some of the comparators did not have disciplinary actions taken against them. Claim 8 Complainant stated that his submitted PS Form 3996, Carrier Auxiliary Control forms, were not accepted by management and unacceptable comments and threats were made toward Complainant. The Manager testified that, at the time, Complainant had not collected proof of his time. Complainant stated further that when he was supervised on the street, his times were up to two hours fewer than reported. The Manager testified that the only comments made to Complainant were truthful ones, and he did not understand how the comments could be construed as unacceptable. Complainant does not address this claim on appeal and does not provide evidence to establish that the Agency acted with discriminatory animus regarding this claim. 2020000399 6 Claim 9 Complainant stated that he received disciplinary actions without providing specifics. The Manager testified that Complainant had numerous disciplinary actions taken against him. The record demonstrated that Complainant was issued a Letter of Warning (LOW) dated January 5, 2018, for Unsatisfactory Work Performance. Complainant was subsequently issued a 7-Day No- time Suspension, dated February 6, 2018, for Failure to Follow Instructions, Failure to Deliver Mail. The 7-Day Suspension was later rescinded and expunged following a grievance. Complainant was issued another LOW dated April 26, 2018, for Failure to Follow Instructions. Complainant does not address claim 9 on appeal and he does not provide evidence to establish that the Agency’s acted with discriminatory animus. Claim 10 The Manager testified that Complainant submitted a PS Form 1767 on May 17, 2018, and that the form was sent to District Safety. The Manager also testified that Complainant was provided responses to the submitted PS Form 1767, in accordance with Agency policy. On appeal, Complainant does not address this claim, nor does he provide any evidence to establish that the Agency acted discriminatorily. To the extent that Complainant alleged that all the matters, raised in the formal complaint, including Claims 4, 5, and 7, constituted discriminatory harassment, 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 his protected basis - in this case, his age, disability, or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his age, disability, or retaliatory animus. His claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination for all the reasons discussed above. 2020000399 7 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). 2020000399 8 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 22, 2021 Date