Ward B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 13, 20192019000063 (E.E.O.C. Mar. 13, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ward B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2019000063 Agency No. 1B-031-0005-18 DECISION On August 17, 2018, 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 27, 2018 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 Supervisor, Distribution Operations, EAS-17 at the Agency’s Processing and Distribution Center (PD&C) in White River Junction, Vermont. On February 10, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him based on sex (male), physical disability (feet, legs), age (63), and in reprisal for prior-protected activity when: 1) From November 15, 2017 through January 30, 2018, Complainant was sent inappropriate emails; 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. 2 2019000063 2) On September 27, 2017, Complainant was issued a Letter of Warning in lieu of a 7-Day Suspension; 3) In December 2017, Complainant's request for leave was denied; and 4) In December 2017, Complainant was yelled at by the Acting Plant Manager. After an investigation, 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b)., finding no discrimination. The instant appeal followed. 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”). We will first review the subject claims, especially those regarding emails and yelling, in the context of harassment or a hostile work environment. Harassment of an employee that would not occur but for the employee’s protected statuses, including disability, sex, age, or prior EEO activities, is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To succeed in proving any of his claims, Complainant needed to show the following four elements: (1) he was a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct; (3) the unwelcome conduct was based on his statutorily protected class; and (4) the unwelcome conduct affected or unreasonably interfered with employment the degree it created an intimidating or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Title VII anti-harassment protections do not authorize EEOC to enforce a civility code. Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75, 80-81 (1998). In the instant matter, we have reviewed the documentation of emails exchanged between Complainant, his two immediate supervisors, one of whom substituted as acting PD&C plant manager. The emails reflect disputes regarding allocation of resources such as employees and equipment. They also reflect Complainant’s frustration that his managers blamed him for a cancelled dispatch and for delays in following-up on routine personnel matters involving those employees whom Complainant supervised. 3 2019000063 Complainant described these emails as nasty, condescending and extremely stress-inducing. Even if we were to presume that this behavior towards Complainant had been severe or pervasive such that a “reasonable person” would have found it hostile, Complainant did not establish how Agency actions were wrongfully motivated by his protected bases — in this case, disability, age, sex, or prior EEO engagement. We cannot discern that the alleged conduct was severe or pervasive to qualify as harassment. See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 3, 1994); Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997); Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). We have consistently held assignments, instructions, and admonishments not severe or pervasive to render a hostile work environment. See Liz M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160016 (Jan. 18, 2018); Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). We also considered Complainant’s accusations in terms of disparate treatment. To prevail in alleging disparate treatment discrimination, he had to satisfy the Supreme Court’s three-part evidentiary test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant had to establish 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). The second burden falls on the Agency to articulate legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Third, Complainant had to show, by a preponderance of the evidence, that the Agency explanations were pretexts for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, Complainant stated that management treated him poorly compared to female supervisory EAS employees who also had attendance problems. Complainant asserted that actions against him related to ten years earlier, when the Agency denied a request to provide him scooter as a disability accommodation. He further accused the Acting PD&C manager denying leave and using discipline in reprisal, because Complainant had twice accused this same individual of discrimination in 2016. Complainant further suspected that the Acting PD&C manager attempting to manipulate Complainant into retiring out of resentment and because Complainant was eligible based on age. On the other hand, the Agency explained the Letter of Warning was properly issued for Complainant’s 34 days of unexcused absences in calendar year 2017. The Agency justified denial of Complainant’s requests under the Family and Medical Leave Act (FMLA) 2017 because it found that he had exhausted his balance and also failed to timely provide medical documentation that could have excused further absence. Taken together with the evidence of record, these opposing parties were at best, in equipoise. Ultimately, Complainant failed to carry the burden of proving to a preponderance of evidence, that the alleged acts of disparate treatment occurred. 4 2019000063 Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014). CONCLUSION Based on a thorough review of this entire record, we AFFIRM the Agency’s final decision finding no discrimination regarding all the subject claims. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 5 2019000063 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 March 13, 2019 Date Copy with citationCopy as parenthetical citation