0120173000
09-27-2018
Winford M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Winford M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120173000
Agency No. 4K220000517
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") pursuant to 29 C.F.R. � 1614.403, from the August 8, 2017, final agency decision ("FAD") 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 was employed by the Agency as a Full Time Rural Carrier at the Lovettsville Post Office in Lovettsville, Virginia.
On November 19, 2016, Complainant filed an EEO complaint alleging that he had been subjected to discriminatory harassment by the Agency on the bases of race (Hispanic), color (mixed), national origin (Peru/South America), and age (42), when:
1. On September 26, 2016, he was notified that he was not selected for the position of Field Sales Representative, Job Posting Number 10034378;
2. On October 3, 2016, the Postmaster ("PM") informed him that his route would not be reduced from a 47K to a 43K for at least another two weeks;
3. On October 12, and 13, 2016, and other unspecified dates, PM spoke to him in a loud tone;
4. On October 12, 2016, PM denied his request for assistance in completing his duties;
5. On October 13, 2016, PM did not provide him with an opportunity to complete the Postal Pulse Survey ("PPS");
6. From July 7, 2014 through December 12, 2016, PM required him to set the alarm at the office; and
7. On October 21, 2016, PM ordered him to work on his day off.
Complainant alleges that he was subjected to retaliation for engaging in protected EEO activity (initiating the instant complaint) when:
8. On January 8, 2017 and other unspecified dates, PM sent him text messages;
9. On January 12, 2017, he was issued a Notice of Removal; and
10. On January 13, 2017, he became aware that he was charged with 3 days of leave without pay, ("LWOP"), for December 24-27, 2016.
After the investigation concluded, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge ("AJ") or for a FAD issued by the Agency. Complainant requested a FAD, which the Agency issued pursuant to 29 C.F.R. � 1614.110(b).
Complainant names his supervisor throughout the relevant time frame, PM (black, African American, United States, age 58), and the District Manager of Sales (white, Caucasian, United States, age 60), who was the Selecting Official ("SO") for the job vacancy in Claim 1, as the responding management officials ("RMO") in his complaint.
In Claim 1, Complainant applied to an internal vacancy (Job Posting Number 100342789) for a Field Sales Representative, EAS-17, in Dulles, Virginia. On August 29. 2016, SO interviewed Complainant for the position by phone. On September 26, 2016, Complainant was notified that another candidate (Caucasian, white, age 55, national origin not specified) was selected. According to Complainant, he was easily more qualified than for the position than the selectee. He held a sales detail in November 2015, where SO had been his manager, and his score on the Agency's assessment exam qualified him for both Field Sales Representative and Senior Field Representative positions. Complainant also notes his fluency in multiple languages, and, as a rural carrier for over 9 years, his strong knowledge and understanding of the Agency and its products. Complainant attributes the nonselection in part to PM, alleging that she "convinced" SO not to hire him by giving a bad reference.
For Claims 2 through 7, Complainant describes feeling singled out by PM, and contends that PM "[gave] preference for African American People like herself" and that PM felt "discomfort" with him because he was the only Hispanic employee, and the only employee at the facility who wasn't born in the United States. Complainant further alleges that PM treated the white/Caucasian employees and younger employees more favorably. Complainant offers two instances where PM exhibited what he describes as "discomfort" with him in Claim 3 by PM allegedly speaking to him in a "loud tone" and telling him to leave her office after denying his requests for assistance with his route and a copy of the PPS (Claims 4 and 5), both of which had been provided to his coworkers. Complainant alleges that PM intentionally caused him to have a heavier workload when she refused to timely implement an agreed upon route reduction (Claim 2), denied his requests for assistance with his route (Claim 4), "forced" him to set the building alarm at the end of his shift (Claim 6) and in one instance, selected him to come work on his day off when the facility was short staffed (Claim 7).
Additionally, Complainant alleged that PM "always wait[ed] until Friday to communicate something important... because Friday [was his] day off." For instance, PM distributed the PPS, which provided an opportunity for carriers to review the Postmaster's performance, with paid time to complete it on a Friday. PM does not dispute that she denied Complainant's request for a copy of the PPS on two occasions, including October 13, 2016 (Claim 5). However, PM testified that Complainant was late departing to his route when he made the request, and that she provided him with a copy on October 16, 2016. By then, Complainant already completed the PPS online on his own time.
Complainant also alleges that PM opportunistically used his three unscheduled absences between December 24 and 27, 2016, to retaliate by charging him with LWOP, ignoring Complainant's medical documentation indicating he suffered severe back pain and could not work on those days. (Complainant was reimbursed for the leave in February 2017). Likewise, PM allegedly used several incidents involving a customer on Complainant's route beginning December 5, 2016, as an excuse to issue the January 12, 2016 Notice of Removal (Claim 10). Complainant contends that the Notice was "illegal" since he did not receive a warning or discipline on the matter first.
The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged, giving rise to 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").
Disparate Treatment
Claims 1, 2, 6, 7, 9 and 10 are "discrete actions" because they all involve concrete adverse employment actions, impacting a term or condition of Complainant's employment. Because a discrete action states a claim outside of the framework of a harassment analysis, it can also be reviewed within the disparate treatment context. See Moylett v. United States Postal Serv., EEOC Appeal No. 0120091735 (Jul. 17, 2012) citing Morgan, at 117, Sedlacek v. Dep't of Army, EEOC Appeal No. 0120083361 (May 11, 2010), other citations omitted.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. 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 Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. 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 on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Where, as here, the Agency has articulated a legitimate, nondiscriminatory reason for the personnel actions 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Claim 1
In a non-selection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep't of Education, EEOC Request No. 05970561 (Aug. 6, 1998). Further, in non-selection cases it is the Commission's position that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Burdine, at 259. Having considered the evidence of record, we find that Complainant has not established pretext because he has not offered sufficient evidence to show that his qualifications are "observably superior" to those of the selectee.
The District Manager of Sales, as the selecting official ("SO") provided a legitimate, nondiscriminatory explanation for Complainant's nonselection for the position of Field Sales Representative. Specifically, the selectee had stronger business development skills and teamwork experience. SO scored the applicants based on four elements: sales experience, postal knowledge, business development skills, and teamwork. While Complainant's strengths were in postal knowledge and sales experience, due to departmental needs, SO gave higher priority to business development skills and teamwork experience when scoring the candidates. Documentation in the record, including the position description, supports that SO's emphasis on some elements over others, was within his discretion as the selecting official.
The burden now shifts to Complainant to demonstrate that the Agency's proffered reasons were a pretext for discrimination. Complainant has not offered comparator evidence, and aside from his own assertions, he has not demonstrated that his qualifications for the position are "observably superior" to those of the selectee. The selectee scored one point higher than Complainant, on the scoring matrix in the record, and by SO's account, did better during the interview. SO explains that in response to questions about teamwork and business development, the selectee gave highly detailed examples of relevant experiences, evidence of his knowledge in these areas, whereas Complainant did not use specific examples or explanations that would demonstrate qualifications comparable to the selectee. Complainant has not offered any evidence to support his alternate allegation that PM "convinced" SO not to hire him, or that PM and SO discussed the matter at all.
Claims 2, 7, and 10
The Agency's legitimate, nondiscriminatory reasons for its actions in these claims was reliance on Agency processes or regulations. In Claim 2, Complainant requested the route reduction in August 2016, but the "effective date" was not until October 29, 2016. PM demonstrated that she timely submitted the request for processing, testifying that "once the adjustment is submitted, [she] has no control over it." Although the reduction did not become effective until November 26, 2016, we do not find the delay "unreasonable," as it occurred before much of the holiday rush, one of Complainant's main concerns. In Claim 7, PM explained that there were no Regular Rural Carriers available on Complainant's day off, October 21, 2016, so she followed procedure under Article 8.6 of the Negotiated Agreement for Rural Carriers. She reviewed the 3-person list of individuals open to volunteer on their relief day, but when one was not available, she required Complainant to work on his regular day off. As for Claim 10, PM demonstrated that she was following Agency policy for sick leave documentation when she initially issued Complainat LWOP, but ultimately the matter was resolved and Complainant was paid on February 23, 2017. Complainant has provided evidence of disparate treatment, as he has not identified a similarly situated comparator employee outside of his protected class who was treated more favorably shown these reasons to be pretext for discrimination.
Claim 6
In Claim 6, the Agency's legitimate nondiscriminatory reason for requiring Complainant to set the building alarm (aside from protecting the safety and security of employees and government property) is that he was the last employee to leave the building. PM required the last employee to leave the building to set the alarm. Complainant argues, without providing evidence, that PM "never asks black or white people to set the alarm" and that PM intentionally increased his workload so that he would inevitably be the last to leave the building. Yet, Complainant does not dispute PM's explanation that he routinely departed for his route after the other carriers, and that on Saturdays in particular, Complainant was typically the last to leave the building.
Complainant further argues that regardless, of whether he was last to leave, "it is not [his] job," and he is "not paid" to set the alarm. As evidence, he notes that setting the security alarm is not listed as one of his duties in the Handbook PO-603 Rural Carrier Duties and Responsibilities ("PO-603"). We find PM acted within the scope of her supervisory discretion. Complainant offers no evidence to indicate that he is literally "not paid" when he completes this task, nor has he shown it to be so burdensome that it changes the nature of his job responsibilities. The Agency's Employee and Labor Relations Manual ("ELM") section 665.15 states "[e]mployees must obey the instructions of their supervisors," indicating that not every instruction Complainant is required to obey is specified in the PO-603 or the ELM.
Claim 9
The Agency's legitimate nondiscriminatory reasons for issuing the January 12, 2016, Notice of Removal are provided within the Notice itself. Specifically, the Notice explained that Complainant engaged in "serious violations of [Agency] regulations and ethical conduct," based on a December 5, 2016 incident with a customer, and Complainant's unnecessary delay of 5 of the customer's parcels on December 6 and 7, 2016, by rerouting 4 of them to the Waterford Post Office for customer pick up, and 1 to the Kingstown Branch Office, approximately 60 miles away, and leaving "Sorry we Missed You" notices that erroneously instructed the customer that an adult's signature was required in order for the packages to be delivered. Complainant is also charged with falsifying his start time on time cards for December 17, 19, and 20, 2016. The Agency listed the regulations Complainant violated in both the ELM and PO-603.
The record provides that on December 5, 2016, Complainant was confronted by a customer on his route after taking a "U-Turn" on the customer's driveway. By the customer's account, Complainant drove recklessly on her private driveway and yard, nearly hitting her. The customer and her husband followed Complainant on his route in their vehicle, and Complainant allegedly acted unprofessional when they tried to speak with him. The customer filed a police report. After they did not receive packages they ordered or their mail, the customer lodged a complaint with the Agency's Office of the Inspector General ("OIG"). An OIG inquiry was opened, and PM was notified on December 12, 2016. The record contains documents from the inquiry, relevant scanning records, and a December 15, 2016 email to PM from an employee at the Waterford Post Office. The email recounts a phone conversation between the employee and Complainant about one of the rerouted packages, and how she delivered it herself when Complainant did not come to get it. On December 19 and 22, 2016, PM met with Complainant for a pre-disciplinary interview, about these incidents, and because it had been brought to PM's attention that Complainant allegedly falsified his arrival time on his time sheet three times that month.
On December 19, 2016, PM submitted a Northern Virginia Performance Cluster Disciplinary Action Request, which would allow for removal of an employee without requiring a preliminary letter of warning or disciplinary action. PM's request was reviewed and grated, resulting in the January 12, 2017 Notice at issue in Claim 9. Complainant has not provided sufficient evidence to show that the Agency's explanation was pretext for discrimination.
Harassment
A claim of discriminatory harassment, or hostile work environment, is comprised of a series of separate acts that collectively constitute one unlawful employment practice. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Unlike a claim which is based on discrete acts of discrimination, a discriminatory harassment claim is based upon the cumulative effect of individual acts that may not themselves be actionable. Id. at 115.
To prevail on a claim of harassment, Complainant must prove, by a preponderance of the evidence, that because of his race, color, national origin, or age (or, for Claims 8, 9 and 10, because of retaliation), he was subjected to conduct so severe or pervasive that a reasonable person in Complainant's position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).
Claims 1, 2, 6, 7, 9 and 10
For the reasons discussed in the previous section, we accept the Agency's legitimate, nondiscriminatory explanations for its actions in Claims 1, 2, 6, 7, 9 and 10, therefore, we find a harassment analysis is not necessary for these claims.
Claims 3, 4, and 5
We find the actions alleged in Claims 3, 4 and 5 describe common workplace occurrences, and unless it is reasonably established that the actions were somehow abusive or offensive, and were taken to harass complainant on the basis of a protected class, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); Long v. Veterans Admin., EEOC Appeal No. 01950169 (Aug. 14, 1997). Although Complainant refers to these allegations as though they were frequent occurrences, i.e., PM denying him requests that she would otherwise provide to his coworkers, speaking to him in a raised voice, he only identifies two examples. Complainant has not established that these actions, even when considered with his complaint as a whole, are sufficiently severe or pervasive to constitute harassment.
Claim 8
Regarding Complainant states that Management will text carriers during normal business hours, using their scanner, whereas PM sent texts to his personal cell phone while he was off. In an email from Complainant to PM dated December 24, 2016, Complainant stated, "once again, please stop sending intimidating messages to my cell phone." As evidence, Complainant provides three copies of text messages from PM to his personal cell phone, all dated prior to the email, and before PM became aware of the instant complaint, and one text dated January 8, 2017 in support of Claim 8 of the instant complaint. These include several texts sent by PM to Complainant on October 13, 2016 at 5:25 PM during business hours (instructing Complainant to deliver a package, asking when he would return because a driver was waiting, instructing him to meet the driver at another post office, and stating she will text when he leaves). Complainant provided two examples of texts he received on his personal cell phone that PM sent when he was not on the job, one on October 17, 2016 at 11:23 PM ("did you set alarm"), and October 21, 2016 at 8:37 AM ("you are expected to be at work today. I need you to call me. You will be AWOL today.") Arguably, the October 21, 2016 was during work hours, as PM notified Complainant in person the previous day that he was scheduled to work, even though it was his day off.
PM concedes that she did text Complainant's personal cell phone, but states that he provided her with that phone number when he gave his employee contact information, and there is no Agency policy prohibiting management from texting an employee. Further, the subject of the texts concerned work matters, specifically, regarding setting the building alarm, which she alleges that Complainant consistently forgot to do. PM states that she instructed employees that the last employee to leave the facility must set the building alarm. According to PM, when the alarm is not set, PM would get a call around 1:00 am from the security company. She would repeatedly remind Complainant, to set the alarm on Saturdays, as he was usually the last carrier to return.
Although we note that Complainant expressly notified PM that he did not want her to contact her by text in the December 24, 2016 email, the record contains one text message from PM to Complainant dated Sunday, January 8, 2017 ("Why didn't you set the alarm on the building"). While PM's method of communication was possibly inappropriate (we do not interpret her text as "intimidating" but Complainant did indicate he did not want to be texted), her action is not so "severe" as to constitute harassment. Moreover, Complainant does not dispute PM's statement that he often "forgets" to set the alarm, and we note his frustration with setting the alarm is a prevalent theme in the record. Complainant has not demonstrated that PM's January 8, 2017 text was motivated by retaliation as opposed to a desire not to be called at 1:00 am.
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 determination that Complainant did not prove discrimination as alleged.
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
September 27, 2018
__________________
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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