Thurman L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20180120172672 (E.E.O.C. Dec. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thurman L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120172672 Agency No. 4C-080-0116-16 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 6, 2017, final decision 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., 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Woodbury Post Office in Woodbury, New Jersey. On November 18, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency subjected him to discriminatory harassment based on race (white), religion (Lutheran), color (white), disability, age (YOB: 1959), and retaliation 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. 0120172672 2 1. on August 3, 2016, Complainant was issued a Letter of Warning (“LOW”); 2. on August 10, 2016, Complainant was issued a 7-Day Suspension; 3. on February 9, 2017, Complainant was issued a 14-Day Suspension; and 4. since June 21, 2016, on a daily basis, management made inappropriate comments about Complainant such as “not being fit for duty;” “you need to retire;” and bullied Complainant to complete his route within a designated time frame, and threatened him with discipline. After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. On July 6, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant does not submit any additional statements or briefs. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1-3 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, he 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). 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 an 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. 0120172672 3 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). Agency management articulated legitimate, nondiscriminatory reasons for its actions. Complainant’s then immediate supervisor (“S1”) (Irish-Italian, white, no religious affiliation, YOB: 1989), stated, regarding claim 1, that he had observed Complainant on July 19, 2016, working out the back of his truck and wearing headphones. S1 explained that he instructed Complainant to “work out the front of his truck” and informed Complainant that he was not permitted to wear headphones. S1 further explained that he observed Complainant on July 28, 2016, again working out of the back of his truck and wearing headphones while parked in a “no parking” zone. S1 stated that he issued the LOW because Complainant failed to follow instructions despite given the opportunity to do so. S1 also stated that he did not participate in the August 2, 2016 pre-disciplinary interview (“PDI”) because he was unavailable due to work responsibilities. The record includes a copy of the August 2, 2016 PDI. During the interview, Complainant stated that “I think I have heard that” when asked whether he knew that he was not supposed to wear headphones while conducting duties on the street. Complainant explained that he did not follow S1’s instruction because “it’s unsafe to work out of the front of the truck.” Regarding claim 2, S1 stated that he issued the 7-Day Suspension for failure to follow instructions. S1 explained that he instructed Complainant to “move to the street and being delivering his route” after S1 had concluded a meeting with Complainant. S1 explained that after 30 minutes had passed, Complainant was still in the meeting room and had not moved to the street. S1 stated that Complainant explained that he “had to put away some of his papers,” and as a result, S1 explained that Complainant used an additional 30 minutes of unauthorized union time. S1 also stated that he did not participate in the August 8, 2016 PDI for the same reason he did not participate in the August 2, 2016 PDI. Complainant’s manager (“M1”) (Caucasian, white, Catholic, YOB: 1971) stated that she concurred with the 7-Day Suspension after she considered S1’s statements as well as the relevant Employee and Labor Relations Manual (“ELM”) provisions. The record includes a copy of the August 8, 2017 PDI. During the interview, Complainant stated that he “went back to put away all paper information” and the process “took about 10-15 minutes.” The 7-Day Suspension letter indicates that Complainant was issued the suspension for failure to follow instructions, and the disciplinary action also took into consideration Complainant’s prior August 3, 2016 LOW for failure to follow instructions. 0120172672 4 Regarding claim 3, M1 stated that she was the concurring official but the Customer Services Supervisor (“S2”) (Caucasian, white, Christian, YOB: 1966) issued the suspension. M1 explained that she relied on her direct knowledge of the event, Complainant’s prior discipline, and the whole investigative file when she concurred with S2’s decision. S2 explained that he issued the 14-Dy Suspension because he determined that Complainant was untruthful when he denied advising another coworker not to provide a statement regarding a work-related injury. S2 further explained that Complainant’s action was improper conduct and the suspension was warranted considering this action in addition to Complainant’s prior disciplinary action. 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 his race, religion, color, age, disability, or reprisal for prior protected EEO activity. Discriminatory Harassment - Claims 1-4 To establish a claim of discriminatory 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 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). 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 his protected basis – in this case, race, religion, color, age, disability, or 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. Here, Complainant simply has provided inadequate evidence to support his claim that treatment was the result of his race, religion, color, age, disability, or reprisal for prior protected EEO activity. As discussed above, we found that Complainant did not establish, with respect to claims 1 - 3, a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded for these claims based on our finding 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). 0120172672 5 As already noted, to establish a claim of harassment, 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 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti- discrimination laws are not a “general civility code.” Id. We find that remaining claim 4 also fails to support a finding that the Agency subjected Complainant to discriminatory harassment. Regarding claim 4, S1 stated that he had no recollection of anyone having conversations with Complainant as alleged. S1 further stated that he was the only management official responsible for setting work expectations for Complainant’s assignments and S1 did not threaten Complainant with discipline. S1 explained that neither Complainant nor other employees notified him about incidents of harassment before he received the instant complaint. M1 and S2 stated that they were unaware of the alleged conversations or were ever informed by Complainant or other employees of this issue. Another supervisor, (“S3”) (white, Catholic, YOB: 1971) stated that he never threatened Complainant, or said the alleged comments, or was otherwise aware of concerns of harassment. We acknowledge that the record includes two witness statements in support of Complainant’s discriminatory harassment allegations. A Carrier Technician (“C1”) stated that she heard S2 and S3 daily say that Complainant “walks slow and walks with a limp,” and threatened to “take him off of his route.” A Carrier Technician (“C2”) stated that S2 and S3 constantly commented on Complainant’s speed and work ethic and used stop watches to track Complainant’s time. These statements directly conflict with the statements provided by the management officials. Here, however, Complainant effectively waived his right to have this matter considered before an EEOC AJ. If Complainant had indeed elected a hearing, then the AJ may have developed the record more through discovery and cross-examination of witness. Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left with Complainant’s version of events and that of Agency management which are completely at odds. As such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). 0120172672 6 We find that considering the allegations in claim 4, even if true, Complainant has not shown evidence that considerations of race, religion, color, age, disability, or retaliatory animus motivated management’s actions toward Complainant. After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. 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 (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. 0120172672 7 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 December 4, 2018 Date Copy with citationCopy as parenthetical citation