[Redacted], Woodrow F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2021002346 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Woodrow F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021002346 Hearing No. 520-2021-00099X Agency No. 1C-145-0002-20 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 February 4, 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-time Mail Handler at the Agency’s Processing and Distribution Center in Rochester, New York. On January 22, 2020, Complainant filed an EEO complaint alleging the Agency subjected him to discriminatory harassment on the bases of race (African American), sex (male), disability (foot), age (year of birth: 1973), and in reprisal for prior protected EEO activity 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. 2021002346 2 1. On unspecified dates from 2006 to 2009, Complainant implemented new ideas, but he was not given credit for it; 2. On an unspecified date around 2009, Complainant was taken off his higher-level detail; 3. On a date not specified in 2011, Complainant’s bid was abolished; 4. In mid-September of 2015, Complainant’s desk was taken with his personal paperwork; 5. On an unspecified date in 2013, and on April 26, 2016, Complainant’s start time was changed; 6. On October 4, 2016, Complainant was issued a Letter of Warning; 7. On unspecified dates in 2016, management would not approve Complainant’s change of schedule or leave requests; 8. On unspecified dates in 2017, management charged Complainant annual leave when he had requested sick leave and leave without pay; 9. On January 17, 2018, Complainant was issued a Notice of 7-day suspension; 10. On January 17, 2018, and October 22, 2018, Complainant was written up;2 11. On unspecified dates in 2019, management dismantled his operation to frustrate him; 12. On October 22, 2018, Complainant was issued a Letter of Warning; 13. On unspecified dates from December 2018 to May 2019, Complainant’s Family Medical Leave Act (FMLA) case was not approved; and 14. On October 1, 2019, Complainant was issued a Notice of Removal. At the conclusion of the 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). 2 As the allegation in claim 10 is the same as the allegations in claims 9 and 12, we find that claim 10 was properly dismissed by the Agency for stating the same claim as raised in the instant complaint. See 29 C.F.R. § 1614.107(a)(1). 2021002346 3 Complainant requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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 2021002346 4 Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order to establish a claim of harassment, a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). As an initial matter, we find that claim 13 is dismissed pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim as a collateral attack on the Family Medical Leave Act (FMLA) process. See Stensgard v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC). With respect to the remaining claims, we find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show he was subjected to a discriminatory hostile work environment. Regarding claim 1, Complainant asserts he created a new mail processing method involving automation. He alleges he was not given credit for it but that other employees were recognized and promoted due to the success of the process. 2021002346 5 The Agency denies this and asserts that the process at issue was negotiated at the national level between the Agency and the American Postal Workers Union. Complainant has not provided any evidence to establish that he was responsible for the new mail processing method. Regarding claim 2, Complainant asserts he was removed from a higher-level detail. By Complainant’s own account, management removed him from the detail after he neglected to ensure all the mail was dispatched from the dock. Regarding claim 3, Complainant asserts his bid was abolished and although he was offered another bid, he did not accept it because a new bid created scheduling conflicts with his second job and outside activities. Complainant asserts that although management told him the bid was abolished because management felt there was no longer a need for it, the operations never ended, and the duties were assigned to other employees. There is no indication in the record, however, that any abolishment of a bid was meant to target Complainant or was motivated by discrimination rather than just changes for the mail processing needs of the Agency. Regarding claim 4, Complainant asserts that while he was away on vacation, his desk, which included personal papers, was confiscated and assigned to someone else. Regarding claim 5, Complainant asserts that after his 6-month bid was terminated, his start time was changed from 4:30 pm to 2:30 pm. He asserts management would not honor his request for a 4:30 start time because they were intentionally trying to create scheduling conflicts for him. The Agency explained that when the bid was terminated, the start time automatically reverts to what a default start time would be (since he was not on a bid). Even if the Agency was, as Complainant seems to assert, incorrect about the rules about start times in Complainant’s situation, there is no evidence that such an error (if there was such an error) was somehow motivated by discrimination. Regarding claim 6, the record shows Complainant was issued a letter of warning for “Failure to be Regular in Attendance” because during the period of June 23, 2016, through September 22, 2016, he failed to report for duty or was not available for at least 68.65 hours in 14 days. Complainant does not dispute the absences. Regarding claim 7, Complainant asserts management told him they denied his request for a schedule change due to service needs. Although he alleges that management was more flexible when White female employees requested schedule changes, he has provided no evidence of such. Regarding claim 8, Complainant asserts that in 2017 he requested leave without pay (LWOP) on several occasions so that he could save his annual leave for his preapproved vacation at the end of the year, but management charged him with annual leave causing him to run out of leave prior to his preapproved vacation. Management asserts that LWOP must be approved by the plant manager. Furthermore, Agency policy provides that if an employee exhausts his annual leave prior to his scheduled vacation period, the scheduled vacation period is null and void. 2021002346 6 Regarding claim 9, the record shows that Complainant was issued a 7-day suspension for being absent without permission after he failed to report to work from December 23, 2017 through December 30, 2017. Regarding claim 11, Complainant alleges that he would set up the equipment he needed to complete his job functions and a chair to sit in between workloads and that each night management would dismantle his setup. Management asserts that equipment was moved for safety purposes. Regarding claim 12, the record shows Complainant was issued a letter of warning for “Failure to be in Regular Attendance” after he incurred eight unscheduled absences from August 9, 2018 through October 2, 2018, which violated Agency policy. Regarding claim 14, the evidence shows that Complainant was issued a Notice of Removal on October 1, 2019, and charged with “Unacceptable Conduct” after he called in for unscheduled sick leave and FMLA sick leave on 45 occasions from July 1, 2016 through August 6, 2019, while reporting to his secondary employer in violation of Agency policy. The record further shows that between 2016 and 2019, Complainant was frequently counseled and disciplined for attendance issues. Complainant makes a general statement that his physical condition (foot) has been ignored for years and management has never allowed nor offered light duty even when he asked for it. However, Complainant has provided no evidence to show that he requested a reasonable accommodation and management denies ever receiving a reasonable accommodation request. Furthermore, none of Complainant’s accepted claims involve any allegations that Complainant was required to perform duties in violation of any medical restrictions. Thus, we find Complainant was not denied a reasonable accommodation. Furthermore, Complainant has not provided any evidence other than his own opinion that management was motivated by discrimination or retaliation. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In addition, Complainant has not shown that there were similarly situated employees not in his protected groups that were treated more favorably regarding any of the claims even if they occurred as alleged. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding the alleged desk moving incident in claim 4, it is unclear what happened. There is no indication any desk was moved for discriminatory reasons. Furthermore, even if claim 4 was true as alleged, it is not sufficiently severe or pervasive to constitute a hostile work environment. 2021002346 7 The Commission has long held that Title VII is not a civility code. Rather, the statute prohibits “only behavior so objectively offensive” as to alter conditions of employment. See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998); Harris, 510 U.S. at 23. In this case, the alleged behavior did not reach that level. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 2021002346 8 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 August 11, 2022 Date