[Redacted], Thaddeus N., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2020004456 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thaddeus N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004456 Agency No. 1E-853-0049-19 DECISION 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 July 10, 2020 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Full-Time Lead Mail Processing Clerk at the Agency’s West Valley Arizona Processing Distribution Center in Phoenix, Arizona. On October 9, 2019, Complainant filed a formal EEO complaint claiming that the Agency subjected him to discriminatory harassment based on race (Caucasian), sex (male), color (White), age (YOB: 1966), and in reprisal for prior protected EEO activity2 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 Complainant testified that he had not filed a prior EEO complaint. However, the record supports that Complainant filed another complaint, Agency No. 4E-852-0162-15, in 2015. The prior complaint did not involve any of the management officials in the instant complaint. 2020004456 2 1. since March 2019 through October 2019, Complainant has been yelled at, belittled, bullied, threatened, and given conflicting instructions by his supervisor; 2. on June 14, 2019, Complainant was issued a Letter of Warning (LOW) for Failure to Follow Supervisor’s Instructions; 3. on July 24, 2019, Complainant was issued a LOW for Failure to Maintain Regular Attendance; and 4. on July 29, 2019, Complainant was issued a LOW for Unacceptable Conduct and Unacceptable Behavior. 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 Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant did not respond. On July 10, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - (Claims 2 through 4) 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). Consequently, Complainant’s supervisor denied being aware of Complainant’s prior complaint and was only aware of the instant complaint. 2020004456 3 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). Our review of the record reflects that the Agency articulated legitimate non-discriminatory reasons for issuing Complainant the LOWs at issue. Complainant’s supervisor (S1) (Black, Female, 44 years old) testified that she was the responsible management official who issued Complainant the LOWs. We address each LOW individually below. June 14, 2019 LOW (failure to follow instructions) S1 denied that she issued the LOW based on Complainant’s protective bases. S1 explained that this LOW was subsequently settled to a discussion. A copy of the LOW indicates that Complainant failed to follow instructions on multiple occasions in April, May, and June 2019. The record further supports that on August 23, 2019, the LOW was reduced to an official discussion. July 24, 2019 LOW (failure to maintain regular attendance) S1 denied that she issued the LOW based on Complainant’s protective bases. S1 stated that this LOW was dismissed because of a technicality. There was an incorrect issuance date on the letter. A copy of the initial LOW indicates that the LOW was dated July 23, 2018 and was reissued with the corrected year on July 29, 2019. Both LOWs charge Complainant with failure to maintain regular attendance. The LOWs explained that Complainant had accumulated 48 hours of unscheduled leave. July 29, 2019 LOW (unacceptable behavior) S1 denied that she issued the LOW based on Complainant’s protective bases. S1 indicated that LOW was settled to a discussion. A copy of the LOW indicates that it was issued on July 29, 2018, even though it was signed by S1 on July 29, 2019. Nevertheless, the LOW further indicates that Complainant was issued the letter for unacceptable conduct and unacceptable behavior. Specifically, the LOW states that Complainant attempted to snatch papers from S1’s hand. The record supports that on August 23, 2018, the LOW was reduced to an official discussion. 2020004456 4 After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, color, age, and in reprisal for prior protected EEO activity. Discriminatory Harassment - (Claim 1) To establish a claim of discriminatory 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). 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, sex, color, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Therefore, claims 2, 3, and 4 are precluded from Complainant’s harassment claim based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). S1 denied that Complainant informed her that he had been subjected to discriminatory harassment. However, S1 explained that Complainant did complain in March 2019 that he was not trained to perform his position duties after he was questioned about being in compliance. Subsequently, S1 indicated that Complainant was provided the requested training and he also received one-on-one training by her. Despite the training, S1 indicated that Complainant was deliberately not performing his job duties because he did not want to perform them. As a result of his non-compliance, S1 stated that Complainant was held accountable for his actions, and in response, Complainant accused S1 of harassing him. S1 explained that Complainant had a history of filing harassment allegations whenever he has been disciplined for his non- compliance. An investigation was conducted in May 2019 regarding Complainant’s allegation that S1 was harassing him regarding his use of Postal equipment and regarding his work assignment. The May 2019 results of the investigation revealed that Complainant’s allegations of harassment were not supported. 2020004456 5 Considering this claim, even if true, Complainant has not produced evidence that considerations of his race, sex, color, age, or retaliatory animus motivated management’s actions toward Complainant. The nature of Complainant’s claim of harassment is of a type that typically arise out of workplace conflicts or communications. However, EEO laws 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). Additionally, beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s his race, sex, color, age, or reprisal for prior protected EEO activity. Complainant’s claim of discriminatory harassment is precluded. 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 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). 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 2020004456 6 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. 2020004456 7 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 December 15, 2021 Date