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

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020000365 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nigel S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020000365 Agency No. 4B-070-0226-18 DECISION On October 3, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 4, 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Gillette Post Office in Gillette, New Jersey. On October 16, 2018, Complainant filed a formal complaint alleging the Agency discriminated against him on the bases of race (African-American) and in reprisal for protected EEO activity (prior EEO activity) when: 1. on July 11, 2018, he was issued a Letter of Warning (LOW) for Failure to Follow Instructions;2 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published to non-parties and the Commission’s website. 2 Because of a grievance settlement, the July 11, 2018 LOW was rescinded. 2 2020000365 2. on August 6, 2018, he was issued a Notice of 7-Day Suspension for Failure to Follow Instructions;3 3. on February 10, 2017, June 10, 2017, July 2, 2018, August 4, 2018, and September 21, 2018, he was given four observations; 4. every day since June 29, 2018, he alleged the white male in his office is allowed to touch the mail, When Complainant touches the mail, however, he is given instructions to return to his case; and 5. on January 8 and 16-18, 2019, his supervisor made numerous false accusations against him and threw mail at him rather than handing it to him. After an investigation, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.4 In its September 4, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1 and 2 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 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). 3 Because of a grievance settlement, the August 6, 2018 Notice of 7-Day Suspension was rescinded and expunged from Complainant’s file. 4 The record reflects that the Postmaster, Berkeley Heights Post Office, did not provide an affidavit. 3 2020000365 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 1, Complainant asserted that on July 11, 2018, he was issued a LOW for Failure to Follow Instructions. The Postmaster of the Gillette Post Office (African-American) explained that Complainant was issued a LOW for failure to follow instructions. She stated that the Post Office Operations Manager (POOM) instructed her “to continue her duties as Postmaster employee errors are discussed with him and administrative action issued by me and I took LMS/Hero online hearing.” She asserted that Complainant’s race and prior protected activity were not factors when she issued Complainant the LOW.5 Regarding claim 2, Complainant alleged that on August 6, 2018, he was issued a Notice of 7-Day Suspension for Failure to Follow Instructions. The Postmaster stated that on August 6, 2018, she issued Complainant a Notice of 7-Day Suspension for failure to follow instructions but as a result of Complainant’s grievance settlement, the Notice was rescinded. The record contains a copy of the Notice of 7-Day Suspension in which the Postmaster placed Complainant on notice that on September 17, 2016, Complainant was instructed “on multiple occasions, and prior to July 11, 2018 LOW issued to you about your failure to follow instructions as it pertains to your carrier duties and responsibilities; accurate scanning and delivery at the delivery point address. You are required to comply with the USPS scanning policy that all mail pieces are to be scanned delivered or attempted with PSF 3849 and delivered to the correct address at the delivery point. However, you have continuously ignored my instructions as noted in your previous LOW and again in 7/23/18 resulting in this action being issued to you.” Complainant failed to prove, by a preponderance of the evidence, that the legitimate, non- discriminatory reasons proffered by Agency management witnesses were a pretext designed to mask the role his race or retaliatory animus played in the disputed actions. 5 LMS is an abbreviation for Learning Management System (LSM) training. 4 2020000365 Harassment/Hostile Work Environment To establish a claim of discriminatory hostile environment 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 class; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 his protected bases - in this case, his race or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as discussed below, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race or prior protected activity. As an initial matter, we have already found no discrimination or retaliation with regard to claims 1 and 2. Therefore, they will no longer be considered as part of Complainant’s discriminatory harassment claim. Regarding claim 3, Complainant alleged that on February 10, 2017, June 10, 2017, July 2, 2018, August 4, 2018, and September 21, 2018, he was given four observations, The Postmaster stated that the observations of Complainant are included in PS Forms 4584 (Driver Observation), 4588 and 4589.6 She asserted that other employees are observed in the office and on the street. She stated a quarterly report license verification is documented on PS Form 4584 to reflect that a license was shown to the Postmaster for each carrier employee. The Postmaster stated that she continues to discuss Complainant’s errors with him in order to improve his performance which she does with other employees as well. Regarding claim 4, Complainant claimed that on every day since June 29, 2018, he alleged the white male in his office is allowed to touch the mail. However, when Complainant touches the mail, he is given instructions to return to his case. The Postmaster attested that all carriers verify Delivery Point System (DPS) letter trays to ensure if mail has to be cased, and it is completed timely and efficiently. She stated that the office leave time is based on volume and at the direction of the POOM which is that all carriers are to be out of the office before 10:00 a.m. She noted that Complainant has been the last carrier to leave on multiple occasions which resulted in coaching from her to return to his case and proceed to case mail or withdraw his mail and proceed to work this third bundle when on street time. 6 The PS 4588 and PS 4589 abbreviation are not identified in the record. 5 2020000365 The Postmaster noted that Complainant is still struggling putting the mail in order when they are numbered in order of delivery. She asserted that Complainant has performance deficiencies which is uncommon for a 30-year employee, while he claims to tell her he knows what his job duties are. Regarding claim 5, Complainant asserted that on January 8 and 16-18, 2019, his supervisor made numerous false accusations against him and threw mail at him rather than handing it to him, the Postmaster denied taking such action. The Postmaster noted that Complainant claimed that his prior office never reviewed his errors or his reports with him and that he was on the offensive when she attempted “to explain to him his actions and results…. Stated he wanted to return to his old office [but he ] has not applied for any open jobs there.” The Postmaster stated that on January 8, 2019, Complainant received a customer pick up and failed to scan it as required. She stated that rather than handing Complainant’s mail to him because of his hostile responses and behavior to her, she puts it on his desk for his review. The Postmaster stated that the mail piece has to be scanned by the carrier upon pick up at the deliver address and that Complainant’s response was “I will do it when I want to, and not when you tell me to,,, I have not left yet.” The record reflects that the management report for January 8, 2019 indicated that Complainant scanned for depart to Route 3 at 10:35 a.m. rather than for Route 2 which is his assigned daily route, and no return to scan for Route 2. Complainant’s asserted that on January 16 and 17, 2019, the supervisor went to Complainant’s case and instead of giving him a hold mail paper, she threw it across his shoulder onto his desk, The Postmaster denied this assertion. Specifically, she stated that “rather than handing it him because of his hostile responses and behavior toward me it is put on his desk for his review and if he has a question on what is to be done, he has time to ask me before he leaves the office.” In sum, the events supporting Complainant’s harassment claim either did not occur as alleged or, if the matter occurred, there is no evidence to support a finding that discriminatory or retaliatory animus played any role in management’s actions. Based on these findings, Complainant’s claim of harassment in violation of Title VII cannot be established. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 6 2020000365 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). 7 2020000365 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 February 9, 2021 Date