[Redacted], Werner A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2021003045 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Werner A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions), Agency. Appeal No. 2021003045 Agency No. 4E-640-0003-20 DECISION On April 19, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 24, 2021 final decision concerning his 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Raytown Post Office in Raytown, Missouri. On November 13, 2019, Complainant filed the instant formal. Complainant claimed that he was subjected to discriminatory harassment based on sex (male) and in reprisal for prior EEO activity when: 1. on July 24, 2019, he was yelled at in a demeaning manner; 2. on July 22, 2019, he was followed and scrutinized while he was on his route; 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. 2021003045 2 3. on July 24, 2019, his supervisor interfered with the performance of his duties; 4. on July 25, 2019, he was placed in an off-duty unpaid status and subsequently issued a Notice of Removal on August 14, 2019; and 5. on September 26, 2019, management scolded him and criticized his behavior stating “men in my family don’t act like that;” After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administration Judge (AJ). Complainant initially requested a hearing. Complainant, however, subsequently withdrew the hearing request. The Agency issued the instant final decision on April 30, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment 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 case of discrimination by presenting facts which, 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 based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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). 2021003045 3 The evidence developed during the investigation of the formal complaint establishes that responsible Agency management articulated legitimate, non-discriminatory reasons for its actions, as more fully discussed below. Regarding claim 4, Complainant claimed that on July 25, 2019, he was placed in an off-duty unpaid status and subsequently issued a Notice of Removal on August 14, 2019. The supervisor acknowledged issuing Complainant a Notice of Removal. She explained that on July 25, 2019, Complainant was placed in an off-duty (without pay) status in order to investigate perceived misconduct. On August 14, 2019, the supervisor issued a Notice of Removal for failure to follow instructions and unacceptable conduct. She stated that on July 25, 2019, while working at his case, the Supervisor, Customer Service (“Supervisor 2”) instructed Complainant that he needed to case direct marketing circulars (“advos”) from route 33019 due to a route adjustment where he would be responsible for them. Instead, Complainant took the tray of advos and placed them under his case. Thereafter, Supervisor 2 reported the incident to Complainant’s supervisor. The supervisor stated that when she gave Complainant instructions regarding the advos, Complainant came back in a loud shouting voice and said, “get off my neck” and became very agitated. As the supervisor walked away, Complainant got another tray of DPS mail and threw it toward the supervisor’s desk. Some pieces of scattered mail hit Supervisor 2. Complainant then clocked out and left the building. The supervisor determined that Complainant violated the following sections of the Employee and Labor Relations Manual (ELM): 665.13 “Discharge of Duties;” 665.15 “Obedience to Orders;” 665.16 “Behavior and Personal Habits;” and 665.24 “Violent and/or Threatening Behavior.” The Manager, Customer Service Operations (male) was the concurring official concerning Complainant’s Notice of Removal. Specifically, he stated that the supervisor informed him that Complainant became upset and threw his tray of DPS letter mail at the supervisor. The record reflects that there was a Step A settlement agreement dated September 13, 2019, indicating the parties agreed to resolve the incident of August 19, 2019 with a seven-day suspension. The form was signed by the supervisor and the union president. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the reason proffered by Agency management for proposing his termination (the July 25, 2019 incident) was actually a pretext designed to mask a discriminatory motivation. Harassment Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 2021003045 4 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, sex and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of his sex and prior EEO activity. Regarding claims 1 and 3, Complainant asserted that on July 24, 2019, he was yelled at in a demeaning manner and on July 24, 2019, his supervisor interfered with the performance of his duties. The A/Manager, Customer Service Delivery (female), also Complainant’s supervisor, explained that the incident occurred on July 25, 2019, not July 24, 2019. She stated that Complainant was hostile and upset because of the extra mail associated with his new route assignment due to recent route adjustments at the Raytown Station. The supervisor understood Complainant’s frustration and tried to help him go through the mail until everything calmed down. The supervisor stated at one point, she went to the dock to give newspaper ads to a different carrier that were mistakenly shifted to Complainant’s route. She stated that when she returned from the dock, there was mail all over the workroom floor, when the mail was scattered, some pieces of mail had hit the Supervisory Customer Service’s foot and Complainant had abandoned his job by clocking out and leaving the building. Complainant asserted that the supervisor stepped into his personal space and began antagonizing him, making statements like “Boy, you heard what I said.” She denied making the comments to Complainant. In addition, the supervisor stated that she did not interfere with Complainant’s duties. Regarding claim 2, Complainant alleged that on July 22, 2019, he was followed and scrutinized while he was on his route. The supervisor averred that she visit all of the carriers’ routes. She stated that while on the street on July 22, 2019, she was looking for a different carrier when she saw Complainant and asked him if he was “ok” and asked if he needed assistance completing his route within his 8-hour restriction. She asserted that Complainant was not being followed or scrutinized. The Supervisor, Customer Service (female) denied following Complainant on his route on July 22, 2019. She stated, however, that all Carriers are subjected to route observations. Regarding claim 5, Complainant asserted that on September 26, 2019, management scolded him and criticized his behavior stating, “men in my family don’t act like that.” The supervisor denied saying anything to Complainant about the men in her family during a conversation she had with Complainant and the union president.2 2 The record does not contain an affidavit from the union president. 2021003045 5 Even assuming the events at issue occurred as alleged, Complainant has simply provided no evidence to support his claim that his treatment was the result of his sex and prior EEO activity. His claim of discriminatory 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. 019982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, 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 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. 2021003045 6 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 July 8, 2021 Date