Alfred S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 26, 20190120180271 (E.E.O.C. Mar. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfred S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180271 Hearing No. 410-2014-00261X Agency No. 4K-300-0072-14 DECISION On October 26, 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 September 26, 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 Introduction At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant 1 in a postal facility located in Woodstock, Georgia. Complainant began his employment on October 4, 2013 and was in a 90-day probationary period. 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. 0120180271 2 On January 8, 2014, Complainant initiated contact with an EEO Counselor alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (50) when: 1. approximately October 23, 2013, management paid Complainant incorrectly for his training hours and a Window Customer Service Supervisor (S1) informed him that the Agency would give him a paid day off every week until he was fully compensated and gave him “inconvenience pay,”2 2. on November 15, 2013, Complainant’s Immediate Supervisor (S2) talked to Complainant about “offending one of the Supervisors” and “acting like a know it all,” 3. on November 19, 2013, a Customer Service Manager (S3) told Complainant he looked like a Ken doll, 4. on November 19, 2013, an Annex Customer Service Supervisor (S4) gave Complainant his 30-day performance evaluation on his 47th day of work, and 5. on January 3, 2014, S4 terminated Complainant’s employment with the Agency.3 Subsequently, on April 5, 2014, Complainant filed an EEO complaint reiterating the same allegations. The Agency investigated Complainant’s complaint. Investigation During the EEO investigation, as to (1), S1 stated that management submits adjustments to correct payroll errors. S1 stated that she submitted two payroll adjustments to ensure that Complainant was paid properly. S1 stated that she did not tell Complainant that she would give him a day off each week and is unfamiliar with the term “inconvenience pay.” S1 stated that Complainant never told her that he was overpaid for his training hours. 2 The EEO Counselor noted, during the counseling period, Complainant stated he received a check for all monies owed and no longer wanted to pursue incident (1). Complainant stated that management clocked him in on his non-scheduled days and the “inconvenience pay” was overpayment, both of which he thought was inappropriate. 3 The record reveals, on January 3, 2014, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding his removal from Agency employment. MSPB docketed the appeal as MSPB No. AT-0752-14-0326-I-1. In an Initial Decision dated January 15, 2014, for AT-0752-14-0326-I-1, MSPB dismissed Complainant’s appeal stating that he withdrew his appeal with prejudice. 0120180271 3 With regard to (2), S4 stated that coworkers contacted her about comments Complainant made in the workplace and management informed him he needed to be more careful about his statements. She noted that coworker concerns did not contribute to his 30-day performance rating. Regarding (3), S3 stated, when she and Complainant met, a female coworker mentioned that he favored a Ken doll and S3 said “You look like some actor.” S3 stated that Complainant responded, “I get Christopher Reeves all the time,” to which she indicated that was a compliment. S3 stated that was the brief conversation between the three of them, and that Complainant did not seem offended by their conversation. For (4), S4 stated that evaluations are not conducted at exactly 30 days but rather based on convenience due to workload. She noted that management does not have to conduct a 30-day evaluation as employees can be removed at any time during the 90-day probationary period. S4 stated that management informed Complainant that his office and street times were unsatisfactory and that he was missing scans and not using the timeclock properly. S4 explained that she had to send Complainant assistance on a route and it took almost twelve hours to deliver the route. S4 acknowledged that Complainant’s direct supervisor, S2, would sometimes give employees positive feedback (rather than negative) as a method to “encourage” the employee. For (5), S3 stated that she provides feedback on new employees and, in an email dated November 20, 2013, she informed management about Complainant missing scans and not returning a phone call. S4 stated that she removed Complainant from employment for unsatisfactory performance. Post-Investigation Following the EEO 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 (AJ). Complainant requested a hearing, but later withdrew his request. On August 16, 2017, the assigned AJ issued an Order remanding the complaint to the Agency. On September 26, 2017, 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. The decision found that incidents (1) through (4) were untimely raised so would only be viewed as background evidence for Complainant’s harassment claim, and only incident (5) would be viewed as a discrete act. The instant appeal from Complainant 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, 0120180271 4 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”). Complainant’s claim before us is one of hostile work environment harassment. We note that Complainant initiated EEO contact on January 8, 2014, which is beyond the 45-day statutory timeframe for incidents (1) through (4). See 29 C.F.R. § 1614.107(a)(2). Further, for incident (5), Complainant elected to proceed in the MSPB process (rather than the EEO process) when he filed an MSPB appeal on January 3, 2014. See 29 C.F.R. § 1614.107(a)(4). The incidents cannot be evaluated individually. Hostile Work Environment 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). As to hostile work environment, we find that Complainant failed to establish a claim of discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, sex, or age. The Agency stated that it processed payroll adjustments for Complainant and was not aware that he was overpaid following the adjustments. Complainant acknowledged said payment. The Agency stated that Complainant’s peers expressed concerns about comments he made in the workplace and management informed him of such and to be conscientious when speaking. It stated that Complainant, a manager, and a coworker had a brief conversation about Complainant’s resemblance to celebrities and he did not seem offended by the conversation. The Agency stated that 30-day evaluations are generally conducted as time allows for management and, when his evaluation was given, management informed Complainant that his performance was unsatisfactory. The Agency stated that Complainant was removed from employment for unsatisfactory performance within his 90-day probationary period. We find, beyond his bare assertions, Complainant has produced no evidence that the Agency’s actions, as viewed together, were based on discriminatory animus. 0120180271 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 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. 0120180271 6 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 26, 2019 Date Copy with citationCopy as parenthetical citation