0120170349
10-12-2018
Ricardo K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ricardo K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170349
Hearing No. 510-2011-00132X / 510-2013-00031X
Agency No. 4G752018011
DECISION
On October 25, 2016, 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 October 18, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that he was subjected to discrimination and harassment based on race (African-American), sex (male), age (52), disability (Stress) and reprisal (prior EEO activity).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier Transitional Employee, Q-01/A at the Agency's Garland Texas Post Office facility in Garland, Texas. On May 13, 2011, Complainant filed an EEO complaint alleging discrimination as noted above. He provided the following incidents in support of his claim of harassment:
Complaint No. 4G-752-0180-11
1. On December 22, 2010, he was harassed when he was not allowed to take his lunch and breaks;
2. On April 13, 2011 and April 29, 2011, he was harassed when he was not allowed to take his lunch and breaks;
3. On February 16, 2011 and May 9, 2011, he was belittled in front of his coworkers;
4. On January 11, 2011 and February 16, 2011, he was belittled in front of his coworkers;
5. On November 18, 2010 and December 6, 2010, he was threatened with termination;
6. On March 11, 2011, he was threatened with termination;
7. On January 13, 2011, he was embarrassed by S1's conduct;
8. On May 12, 2011, he was embarrassed by S1's conduct; and
9. On May 5, 2011, he was retaliated against for filing a complaint against another supervisor.
Complaint No. 4G-752-0216-11
10. On May 2, 2011, he was given a Pre-Disciplinary Interview;
11. On May 3, 2011, he was issued a Letter of Warning for Failure to Follow Instructions;
12. On June 30, 2011 through July 5, 2011, he was taken off the clock;
13. From March 30, 2011 to September 25, 2011, he was only able to take lunch on ten (10) occasions and a 10-Minute break on one occasion;
14. On June 18, 2011, he was issued a Letter of Warning; and,
15. On September 8, 2011, he was issued a Letter of Warning.
Regarding Claims 1 and 2, Complainant states that he was harassed when he was not allowed to take his lunch breaks. He contends that management had given him too much work to complete his deliveries. His supervisor advised him that it would be in his best interest to be back in the office by 5:00 p.m. The Agency contends that he had sufficient time to deliver the mail and take his lunch breaks. The Agency was not content with the time taken by Complainant to deliver his mail. Complainant dropped the April 29, 2011 allegation after he realized that he did not work that day.
Regarding Claims 3 and 4, Complainant states that in front of other workers, his Manager chastised him and warned him about coming back late. Complainant stated that she told him that "I've got something for you, keep it up." Complainant stated that the Supervisor made the comments where others could hear. On the May 9, 2011 occasion, another supervisor spoke harshly to Complainant about not completing his deliveries on time and would not order another employee to assist him.
Regarding Claims 5 and 6, Complainant maintained that he was again chastised for his delivery time, and was advised that the Manager had told his Supervisor to fire him. She, however, acknowledged his need for his job, and she did not fire him. On December 6, 2011, Complainant maintained that he was again warned about coming back late, and he was told that when his contract ended he would be "outta here." Complainant was again similarly chastised about being late on March 11, 2011.
Regarding Claims 7 and 8, Complainant claimed that on January 13, 2011, he overheard his Manager criticizing him to another employee, and on May 12, 2011, Complainant was again chastised while he was scanning mail. He identified two other employees who he claims overheard the conversation.
Regarding Claim 9, Complainant claims that he had been given a day off on April 29, 2011, and took a trip to Oklahoma. At 12:30 p.m., he was called and instructed to come to work. He informed them that he was in Oklahoma, but management insisted that he come back to work. Complainant did not return. On May 3, 2011, he was issued a Letter of Warning for failure to follow instructions. The letter set forth references to violations of Agency rules involving reliability, efficiency, and discharging the duties conscientiously and effectively. The letter also noted that Complainant was a temporary employee and on call, and was aware that he was to follow the instructions of his manager. Complainant claimed that he received the letter in retaliation for filing "an EEO complaint." On May 7, 2010, Complainant had informed a Supervisor that he was a participant in a Fair Labor Standards Act class action lawsuit against the Postal Service.
Regarding Claim 10, the Agency gave Complainant a pre-disciplinary interview on May 2, 2011. Complainant stated that his supervisors had discriminated against him.
Regarding Claim 11, the May 3, 2011 Letter of Warning was discussed. The Agency's requirements were explained to him, and Complainant told Agency officials that regarding a requirement that he was "on-call," and that "a day off could be rescinded," he had consulted with union officials and was informed no such policy existed.
Regarding Claim 12, Complainant was taken off the clock on June 30, 2011 through July 5, 2011, and he returned to work on July 6, 2011. According to Complainant, he was stopped by the Postmaster and another Manager for wearing a Bluetooth. Complainant was cited for violating Agency rules. During that event, it was also discovered that Complainant did not have his driver's license. Complainant stated to them that no other employee was taken off the clock for this type of violation.
Regarding Claim 13, Complainant acknowledged that no one in management told him that he could not take his lunch break or other breaks. He, however, stated that management was serious about the working timeframes, and that he was written up when he returned one minute late; therefore, it was impossible for him to take a break/lunch and still comply management's instructions.
Regarding Claim 14, Complainant voiced his concerns over the tight time frames and added duties to the Postmaster. The Postmaster responded "..., get out there and do the best you can. I know you can handle it." Subsequently, he was cited when he was late, and received a Letter of Warning dated June 18, 2011.
Regarding Claim 15, Complainant received another Letter of Warning for not returning on time. Complainant alleged that the Agency was violating several statutes, policies overseen by the Commission, as well as Agency policies.
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). Complainant requested a hearing but the AJ denied the hearing request because he failed to comply with her hearing order. The AJ remanded the complaint to the Agency, and 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.
CONTENTIONS ON APPEAL
Although Complainant submitted documents from the record on appeal, he did not submit a statement in support of his appeal; consequently, he did not explain what he specifically is contesting from the Agency's final decision.
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").
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To meet his burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such "weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014).
Assuming, arguendo, that Complainant was able to establish a prima facie case of discrimination based on race, sex, age, disability and reprisal with regard to the matters set forth in his EEO complaints, we find that the Agency provided legitimate, non-discriminatory reasons for its treatment of Complainant with respect to his being taken off the clock, i.e., suspended; being given a Pre-Disciplinary Interview; being issued three (3) Letters of Warning for Failure to Follow Instructions; and his lunch and breaks being limited. Complainant provided no persuasive evidence of pretext. Even if, as Complainant maintains, the Agency violated its policies and practices on various occasions that does not indicate that its actions were necessarily discriminatory.
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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). Further, 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).
We find that, after examining all of Complainant's allegations as a whole, he has not established a claim of harassment. We find no persuasive evidence that the conduct, even if true, was based on Complainant's race, sex, age, disability or previous EEO activity. Likewise, we do not find that these matters were severe or pervasive enough to rise to the level of unlawful harassment. For the most part, we find that these matters appear to be normal workplace interactions and disagreements that are common in workplaces.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__10/12/18________________
Date
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.
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