Von E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 20180120172782 (E.E.O.C. Oct. 26, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Von E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120172782 Agency No. 1K206000217 DECISION On August 19, 2017, 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 21, 2017, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Parcel Post Distribution Clerk at the Agency’s Southern Maryland Processing and Distribution Center facility in Capitol Heights, Maryland. On February 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Uganda), age (55), and reprisal for prior protected EEO activity under Title VII, 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. 0120172782 2 1. on October 14 – 19th, 2016, Complainant was placed on emergency placement in an off-duty status; 2. since October 20, 2016, and on December 25, 2016 and December 30, 2016, his supervisor was critical of his work; and 3. since October 20, 2016, and on December 25, 2016 and December 30, 2016, his supervisor has spoken in a loud manner. Claim One – Emergency Placement Complainant alleged that three officials discriminated against him: Complainant’s immediate supervisor, the Supervisor, Distribution Operations (Bi-racial, age 42) (S1); the Supervisor, Distribution Operations (African-American, 54) (S2), and the Manager, Distribution Operations (Black, 41) (S3). Complainant had prior EEO activity when he initiated an informal complaint on August 3, 2015 and a second informal complaint on November 28, 2015 Only S3 was aware of Complainant’s prior EEO activity. The record shows that S3 had been named as a responsible management official in Complainant’s prior EEO activity. The most recent EEO activity occurred seven months earlier. Complainant averred that he believed that the managers were aware of his national origin and age. Regarding Claim 1, the record shows that Complainant was removed from his assigned facility and placed on an off-duty status from October 14, 2016 until October 19, 2016.2 The record shows that the supervisor approached Complainant’s work area. Complainant averred that S1 yelled work orders at him and that Complainant asked her to be respectful. According to S1, Complainant walked toward her, defended his knowledge of his job, told her to stop calling his name, and pushed his arm in such a way to cause her to lose her balance. S1 stated that the Postal Police were called to escort him off the premises when Complainant refused to apologize. S1 also averred that she instructed Complainant to stop what he was doing and help in another operation on October 14, 2016, which Complainant ignored. Complainant acknowledged that his arm came in contact with his supervisor’s (S1’s) arm during his discussion with her about a weigh scale in the facility. He was trying to discuss a work matter with her, and, in the process, his arm accidentally touched her arm. She responded by saying loudly, “don’t touch me.” S1 conducted a “PDI.” S1 says that Complainant was placed off-duty for unacceptable conduct on October 14, 2016. Complainant was given the notice of emergency placement and removed from the facility. 2 Complainant was compensated through the grievance process for his time under the Emergency Placement in an off-duty non-pay status. 0120172782 3 Claims Two and Three – Supervisor Criticism and Harassment On December 25, 2016, Complainant averred that S1 yelled at him for relaxing his injured foot, but she did not address the other employees on the work room floor who were doing nothing. On December 30, 2016, the supervisor yelled at Complainant and questioned him regarding who told him to relieve another employee. Complainant stated that he was following the normal practice. Complainant stated that the supervisor inspected his work whenever he was assigned to the racks. He stated that he felt singled out for harsher treatment than others not in his protected groups. Complainant subsequently bid on another position at another facility to get away from the supervisor. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Agency Decision The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency reasoned that the actions alleged in claims 2 and 3 were not adverse, occurred over only a three-week period, and that Complainant failed to identify any comparator employees for claims 1 and 3. Regarding claim 2, the Agency noted that Complainant had identified coworker 1 as someone who he though was treated more favorably. The Agency stated that the coworker was younger than Complainant, but of the same race. S1 denied yelling at Complainant and averred that she treated Complainant and the coworker the same as they performed their duties. The Agency stated that “in age cases, the complainant must prove by a preponderance of the evidence that age was considered and that it was the determining factor.” (Emphasis added). The Agency found that Complainant had not established any of his prima facie claims. The Agency then stated that management has articulated legitimate non-discriminatory (conduct-related) explanations for their actions which were not shown to be a pretext for discrimination. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant offered a statement from an eye witness who said that she did not see Complainant touch the supervisor. The witness averred that she did not believe the supervisor was justified in her actions. In addition, Complainant offered, as evidence, an employee petition3 requesting the removal of the supervisor, in support of his claim that the supervisor overreacted. 3 That employee petition was circulated, and dated, after the filing of this appeal. 0120172782 4 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”). Age Discrimination and Retaliation Section 633(a) of the ADEA requires federal agencies to make all of their personnel actions free of age discrimination. See 29 U.S.C. 633(a) (all personnel actions in federal employment “shall be made free from any discrimination based on age.” In addition, EEOC’s federal sector laws ban retaliation. The Commission has determined that based on its plain meaning, “free from any” must be construed as being broader than the “because of” language applicable in the private- sector. See Geraldine G. v. United States Postal Service (Headquarters), EEOC Appeal 0720140039 (June 3, 2016) (citing Fuller v. Gates, Secretary of Defense, 2010 WL 774965 (E.D. Texas. March 1, 2010) (distinguishing the private sector “but-for” standard from the federal sector “make free” requirement). It is not necessary to prove that age was the sole determining factor in a federal sector case. 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 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 Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant stated that he believed that he was subjected to age discrimination, and national origin discrimination, when he was placed on emergency placement and then retaliated against by his supervisor when he was returned to work, following a grievance settlement. 0120172782 5 Two witnesses disputed the supervisor’s account for of the actions that led to the placement on emergency placement. The record shows that Complainant’s supervisor was new to her position and likely overreacted when Complainant’s arm accidentally brushed against her arm. There was no evidence, however, that this emergency placement happened because of Complainant’s national origin or age. Complainant also stated, in his affidavit, that he was not alleging retaliation with regard to the first claim. Even assuming that Complainant established the elements of all of his prima facie claims, the Agency articulated a legitimate, non-discriminatory reason for its actions. The record shows that the alleged responsible management official believed that Complainant had disregarded her instructions and had touched her inappropriately. We find that Complainant did not offer evidence that these reasons were a pretext for unlawful discrimination. Based on our analysis, we find that Complainant did not establish, by a preponderance of the evidence, that he was the victim of unlawful discrimination or a hostile work environment. For these reasons, we find that the Agency’s Decision is supported by the record. CONCLUSION Accordingly, we AFFIRM the Agency’s Decision for the reasons stated herein. 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 tends 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. 0120172782 6 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. 0120172782 7 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 October 26, 2018 Date Copy with citationCopy as parenthetical citation