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

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021000508 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ryan C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021000508 Hearing No. 520-2020-00159X Agency No. 4B-060-0092-19 DECISION On October 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2020 final action 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 Supervisor, Customer Service, at the Agency’s Guilford Post Office in Guilford, Connecticut. On August 5, 2019, Complainant filed the instant formal complaint. Complainant claimed that alleging that the Agency discriminated against him on the bases of race (Asian), color (medium brown), sex (male), and in reprisal for protected EEO activity (current EEO activity) when: 1. beginning in 2017 and ongoing, he had not been properly paid; 2. on March 3, 2018, he was issued a Letter of Warning for Failure to Discharge his Duties Consistently and Effectively/Failure to Follow Instructions; 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. 2021000508 2 3. on June 15, 2018, he was issued a Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension for “Failure to Discharge Your Duties Consistently and Effectively/Failure to Follow Instructions;” 4. in November of 2018, a management official stated “I will find a reason to get rid of you;” 5. on December 14, 2018, a management official slammed papers on the desk in front of him; 6. on January 21, 2019, he was issued a Proposed Letter of Warning in Lieu of Fourteen (14) Day Time-Off Suspension for “Failure to Discharge Your Duties Consistently and Effectively/Failure to Follow Instructions;” 7. on March 19, 2019, his non-scheduled day was changed; 8. on March 28, 2019 and other unspecified date(s), he was threatened with discipline, and management made inappropriate comments and hand gestures; and 9. on unspecified date(s), he alleged on a daily basis he was verbally abused and belittled with sarcastic and inappropriate comments. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, the AJ issued a decision by summary judgment finding no discrimination. The Agency issued its final action adopting the AJ’s finding. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2021000508 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment - Claims 1, 2, 3, 6 and 7 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). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management official articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant asserted that beginning in 2017 and ongoing he had not been properly paid. The Postmaster (Caucasian, white female) explained that Complainant started out as an opening supervisor and was subsequently changed to a closing supervisor. When the change was made, it was an oversight that his automated clock rings were not changed in Time and Attendance System (TACS). The Postmaster stated that she did not become aware the Complainant was not receiving night differential pay until she participated in a May 14, 2019 attempt to settle his EEO complaint. The Postmaster stated that she apologized to Complainant for the error, and then she completed the pay adjustments for him. Complainant alleged that on March 3, 2018, he was issued a Letter of Warning for Failure to Discharge his Duties Consistently and Effectively/Failure to Follow Instructions. The Postmaster acknowledged issuing the March 3, 2018 Letter of Warning to Complainant because he sent an employee home without consulting her and she believed the employee should have not been sent home. The Postmaster stated that the employee that was sent home was supposed to be at work for his shadow day and “even stated to Complainant that [Postmaster] said I was to be here” and Complainant still did not consult me and sent him home. During the investigative interview, Complainant kept repeating that the Postmaster was busy and the employee, who was a trainer, was not in the office to train. 2021000508 4 Complainant claimed that on June 15, 2018, he was issued a Letter of Warning in Lieu of a Seven (7) Day Time-Off Suspension for Failure to Discharge your Duties Consistently and Effectively/Failure to Follow Instructions. The Postmaster stated that part of the closing supervisor’s responsibilities is to run the scan tool and at the End of Day (EOD) report to assure all parcels scanned arrived that day were delivered. She noted that there were packages on the EOD report but not addressed by the closing supervisor. During the investigative interview, Complainant claimed he did not know what happened to the packages or who scanned them. The AJ noted when asked why Complainant believed that the June 15, 2018 Letter of Warning in Lieu of a Seven-Day suspension was based on race, he merely stated “[Postmaster] does not treat me fairly.” Furthermore, when asked why he believed it was based on his sex, Complainant stated that the Postmaster “does not like” him and that she “hates” him. Complainant asserted that on January 21, 2019, he was issued a Proposed Letter of Warning in Lieu of Fourteen (14) Day Time-Off Suspension for Failure to Discharge Duties Consistently and Effectively/Failure to Follow Instructions. The Postmaster noted that Complainant continue to make same payroll errors and “his response was he is human and doing the same thing every day he will make mistakes.” Complainant asserted that on March 19, 2019, his non-scheduled day was changed. The Postmaster acknowledged changing Complainant’s non-scheduled day because he informed her at the last minute that he would be unable to come to work at his scheduled time “so I had him do a change of schedule as there are no part day vacation or sick time for supervisors.” Complainant claimed that on March 28, 2019 and other unspecified date(s), he was threatened with discipline and management made inappropriate comments and hand gestures. In his affidavit, Complainant did not specify what exactly he was referring to. He merely stated that such actions were taken “on a routine basis.” The AJ determined that a supervisor making inappropriate comments or one-off hand gestures are not sufficient evidence to show the Postmaster subjected him to harassment. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, color, sex or retaliatory animus. Harassment - Allegations 4, 5, 8 and 9 To establish a claim of 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 2021000508 5 work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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 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 a protected basis - in this case, his race, color, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. With regard to the claims already addressed in this decision, we determined they cannot be considered as evidence in support of Complainant’s claim of a discriminatory hostile work environment based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. Therefore, we will only consider his remaining allegations. With respect to Complainant’s allegation that in November of 2018, the Postmaster stated, “I will find a reason to get rid of you,” she denied making the comment. There is no other evidence in the record to support Complainant’s allegation concerning this comment. Complainant claimed that on December 14, 2018, the Postmaster slammed papers on the desk in front of him. The record reflects that Complainant acknowledged that the Postmaster’s action was in response to something that Supervisor, Customer Service, did, and did not involve him. Complainant further alleged that he was repeatedly verbally abused and belittled with sarcastic and inappropriate comments. The AJ noted that there are three affidavits in the report of investigation. One was from an Assistant Rural Carrier, who stated he never observed the Postmaster treat Complainant with disrespect or make sarcastic remarks of inappropriate gestures. She also noted a female Rural Carrier averred she observed the Postmaster standing over Complainant and belittling him with her arms crossed and yelling at him “loudly.” The female Rural Carrier, however, stated that the Postmaster treats many employees that way. Finally, the AJ noted that a male Rural Carrier heard the Postmaster yelling at Complainant in front of everyone and that she would frequently “point her finger” at him while “yelling.” Viewing the evidence in the light most favorable to Complainant, the image which emerges from considering the totality of the record is that there were conflicts and tensions with the Postmaster’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it 2021000508 6 protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the Postmaster was motivated by discriminatory or retaliatory animus. Complainant’s 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 We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 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. 2021000508 7 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. 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 March 8, 2021 Date