0120151457
09-25-2017
Carey G.,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
Carey G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120151457
Hearing No. 430-2013-00268X
Agency No. 4K-280-0105-12
DECISION
On March 13, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 11, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether the Agency discriminated against Complainant or subjected him to a hostile work environment on the bases of race, color, sex, and national origin when it placed him in an emergency off-duty status, issued him a Notice of Proposed Removal that was reduced to a 14-Day Suspension, and charged him with 40 hours of leave without pay; and (2) whether the Agency subjected Complainant to a hostile work environment in reprisal for the instant complaint when it requested that personal items be removed from the bulk mail area, conducted an Investigative Interview, and did not give Complainant an opportunity to take the General Clerk test.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Technician at the Agency's Wilmington Post Office in Wilmington, North Carolina.
On October 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (American Indian), color (white/brown), sex (male), and national origin (Southern American Indian) when:2
(1) on May 18, 2012, the Agency placed him in an emergency off-duty status as a result of a physical and verbal altercation with a coworker on May 17, 2012;
(2) on June 4, 2012, the Agency issued him a Notice of Proposed Removal, based on the May 17, 2012, incident; by Letter of Decision dated June 28, 2012, the Agency reduced the Notice to a 14-Day Suspension; and
(3) on July 19, 2012, Complainant became aware that the Agency charged him 40 hours of Leave Without Pay (LWOP) for the week of July 2, 2012.
Complainant subsequently alleged that the Agency subjected him to a hostile work environment in reprisal for the instant complaint when:
(4) on December 28, 2012, management requested that all personal items be removed from the bulk mail area;
(5) on December 31, 2012, the Agency conducted an Investigative Interview on Complainant regarding delaying the mail; and
(6) on January 12, 2013, Complainant did not have an opportunity to take the General Clerk test.
Allegation (1): Placement in Emergency Off-Duty Status
Complainant had an altercation with a coworker (CW1) on May 17, 2012, at approximately 6:00 p.m., after Complainant had clocked out of work. By memorandum dated May 18, 2012, the Supervisor of Customer Service (S1) and the Officer-in-Charge (S2) placed Complainant in an emergency off-duty (without pay) status effective May 18, 2012. The memorandum charged Complainant with approaching CW1 as CW1 was leaving the Agency facility, pushing CW1, and putting his hands around CW1's neck. It stated, "Retaining you on duty could result in injury to yourself or others."
The Postal Inspector conducted an investigation into the altercation. According to a May 23, 2012, Investigative Memorandum, Complainant told the Postal Inspector that CW1 had bullied him for years, that Complainant waited for CW1 in the parking lot, and that CW1 began yelling at Complainant as soon as he got to the parking lot. The Investigative Memorandum stated that Complainant acknowledged approaching CW1 aggressively and poking CW1 in the chest. CW1 told the Postal Inspector that Complainant pushed him, grabbed him around the neck, and pushed him again.
In his affidavit, Complainant claimed that CW1 was the provocateur and started the incident by yelling and cursing at Complainant while on the clock. He asserted that the Agency treated him less favorably than it treated CW1 and a female City Carrier (CW2) who pushed S1 on October 19, 2011, and received only 39.82 hours of LWOP as discipline. He also asserted that the Agency did not discipline a Maintenance Custodian who was arrested for "moonshine" in June 2009, a Station Manager who assaulted an employee on the workroom floor in May 1997, and an Acting Postmaster who knocked the Complainant's hat off in October 2008. In addition, Complainant indicated that the Agency disciplined six employees who were involved in altercations.
Complainant submitted a copy of an October 19, 2011, memorandum placing CW2 in emergency off-duty status. Signed by S1 and the Manager of Customer Services (S3), the memorandum charged CW2 with shoving S1 on October 19, 2011. The memorandum stated, "Retaining you on duty could result in injury to yourself or others." According to an October 25, 2011, Postal Inspector Investigative Memorandum that Complainant submitted, CW2 became agitated when S1 spoke to her about her performance and reprimanded her for eating "within the case." The Postal Inspector concluded that CW2, who pushed S1 backward with her hands, physically assaulted S1.
S2 stated in his affidavit that the Agency placed Complainant in emergency off-duty status because Complainant "initiat[ed] a verbal and physical altercation with another employee."
Allegation (2): Notice of Proposed Removal Reduced to 14-Day Suspension
On June 4, 2012, S2 and the Postmaster issued Complainant a Notice of Proposed Removal for Improper Conduct. The Notice stated that, on May 17, 2012, Complainant approached CW1 angrily, bumped him, grabbed his neck, and shoved him twice. The Notice also stated that Complainant admitted to engaging in physical contact with CW1. It noted that Complainant had worked for the Agency since 1984 and was aware of the Agency's Zero Tolerance Policy Toward Violence in the Workplace.
By memorandum dated June 28, 2012, the Postmaster mitigated the discipline to a 14-Day Suspension. He noted that, although Complainant's offense was very serious, Complainant had worked for the Agency for 28 years and did not have any disciplinary actions on his record. He concluded that the alternative sanction of suspension would correct Complainant's conduct and deter similar actions in the future. The Postmaster directed Complainant to report to work according to his work schedule as of July 2, 2012.
Complainant argued in his affidavit that he should not have received a Notice of Removal. He asserted that CW1 received no discipline and that CW2 had received less than 40 hours of LWOP. When asked why he believed that his protected classes were factors in the decision to issue the Notice/Suspension, Complainant replied, "If not, what was it, prima facie case."
The Postmaster stated that he reviewed information regarding the Notice of Removal and concurred with it. He asserted that Complainant showed no remorse for his actions and did not "take ownership" of them. The Postmaster reduced the discipline to a 14-Day Suspension because of Complainant's years on the job without prior discipline. He stated that he was not the Postmaster in 2011, when CW2 had the altercation with S1.
Allegation (3): Leave Without Pay (LWOP) for the Week of July 2, 2012
The Agency charged Complainant with 40 hours of LWOP for the period July 2-6, 2012. Complainant stated that he submitted a request for emergency leave for that period to help his union steward "in collecting statements and interviewing lawyers for [his] EEO." According to Complainant, S3 refused his request because S3 did not believe that it was an emergency. Complainant asserted that the Agency treated CW2 more favorably by approving her request for 24 hours of sick leave during the same period. When asked why he believed that his protected classes were factors in the decision to charge him with 40 hours of LWOP, Complainant referred to his response regarding the suspension ("If not, what was it, prima facie case.").
S3 stated that he denied Complainant's request because it did not meet the criteria for emergency leave. According to S3, Complainant stated that he needed to meet with his lawyer but did not provide adequate documentation to substantiate the request. S3 stated that Complainant should have submitted a request for pre-approved leave but did not. He also stated that CW2 was not scheduled to work on July 2, 2012; worked a regular day on July 3; was on holiday leave on July 4; submitted a leave request for and used 2.35 hours of sick leave on July 5; and was charged with .10 hours of LWOP on July 6 because she reported to work late.
Allegation (4): December 28, 2012, Request to Remove Personal Items from the Bulk Mail Area
In his affidavit, Complainant stated that S1, the Acting Manager (S4), and the Postmaster directed him to clean up the bulk mail area on December 28, 2012. He acknowledged that he had left some personal items in the area. He asserted that his coworker (CW3) also left personal items in the area, that "most of the mess" was hers, and that she did not remove her items.
S4 stated that the Postmaster instructed all city managers to keep all of the work areas clean. According to S4, "the bulk mail area was cluttered with work and non-work items." The Postmaster confirmed that he told S4 to have the bulk mail area cleaned. He described the bulk mail area as "a pig sty" and "a cluttered mess" that "looked unprofessional."
Allegation (5): December 31, 2012, Investigative Interview
On December 31, 2012, S4 conducted an investigative interview of Complainant to determine if mail had been willfully delayed. Complainant stated in his affidavit that he "had 38 jobs and 21 verifications" and that he had told S1 that he had 30 jobs when he returned from lunch. He alleged that managers "misused the process to make [him] the fall guy." S4 stated that he conducted the interview because S1 "disputed the Complainant's initial statement." S4 further stated, "After the interview, it was determined that the mail was not willfully delayed."
Allegation (6): Opportunity to Take the General Clerk Test
According to a notice from the Agency's Online Assessment System, Complainant applied for a General Clerk position under Job Posting Number 368640. The notice informed Complainant that he needed to complete all of the steps in the assessment process by December 18, 2012, and that he would be removed from consideration if he did not complete the steps within the allotted time. A second notice stated that Complainant was scheduled to take the "712/713 Typing Test--In Service" on December 18, 2012. It also stated that he could cancel or reschedule the appointment up to 24 hours before the appointment and explained how to do so. A third notice reminded Complainant that he was scheduled to take the test on December 18, 2012.
Complainant stated in his affidavit that he had a migraine headache on the date scheduled for the test. He asserted, "I think it would have been fair to allow [him to] take [or reschedule] the test." (Emphasis in original.)
The Postmaster stated that the top three senior employees received the notice and that they had two weeks within which to schedule the test. Complainant, who received the same notice that the two other candidates received, did not take the test.
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. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found that Complainant did not establish prima facie cases of discrimination based on race, color, national origin, or reprisal. The Agency also found that it articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not prove that the articulated reasons were a pretext for discrimination. With respect to Complainant's claim of harassment, the Agency found that the incidents about which Complainant complained were neither severe nor pervasive, that Complainant was not subjected to unwelcome slurs or conduct, that the incidents were not based on Complainant's protected groups, and that there was no basis for imputing liability to the Agency. The Agency concluded that Complainant did not establish that the Agency had discriminated against him as alleged.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency treated him less favorably than it treated CW1 and CW2. He asserts that the Agency "dropped the clean up" after he removed his personal items from the bulk mail area and that "BRM and Postage Due go days without being worked and no investigation is done." In addition, Complainant contends that the Agency should have rescheduled the General Clerk test because he missed the test "because of an approved [Family and Medical Leave Act] condition." He submits several documents, including a June 17, 2013, arbitrator's decision that upheld his 14-Day Suspension but ordered the Agency to rescind the Notice of Emergency Placement that placed him in an emergency off-duty status.
In response, the Agency argues that Complainant did not establish a prima facie case of discrimination, that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant did not prove that the articulated reasons were pretextual.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. 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 pretextual. 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). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
We assume, for purposes of analysis only and without so finding, that Complainant has established prima facie cases of discrimination based on race, color, sex, national origin, and reprisal.
The Agency has articulated legitimate, nondiscriminatory reasons for its actions. S2 stated that the Agency placed Complainant in emergency off-duty status because Complainant initiated an altercation with another employee. The Notice of Removal charged Complainant with improper conduct related to the altercation, and the Postmaster stated that Complainant showed no remorse for his actions. The Postmaster reduced the discipline to a 14-Day Suspension because of Complainant's years on the job without prior discipline. S3 stated that he charged Complainant with LWOP because Complainant's request for emergency leave did not meet the criteria for such leave. The Postmaster stated that he instructed S4 to have the bulk mail area cleaned because it looked like "a pig sty." S4 conducted the Investigative Interview to determine if mail was willfully delayed. A notice from the Agency's Online Assessment System informed Complainant that he was scheduled to take the test for the General Clerk position, but Complainant did not take the test.
Complainant has not proven that the articulated reasons are a pretext for discrimination. Although Complainant has argued that the Agency treated him less favorably than it treated CW1, the evidence establishes that managers reasonably believed that Complainant, rather than CW1, initiated the physical altercation. Like Complainant, CW2 received a memorandum placing her in emergency off-duty status after her altercation with S1. It appears that she did not receive a 14-day suspension. Given the specific facts of this case, however, we cannot say that the apparent differences in discipline are sufficient to establish that the Agency discriminated against Complainant. In that regard, we note that the Postmaster, who made the decision to suspend Complainant, was not the Postmaster when CW2 engaged in the altercation and specifically found that Complainant showed no remorse for his actions. Complainant's assertion that the Agency did not discipline three other employees does not establish pretext here, where the behavior of the Acting Postmaster and the Maintenance Custodian was not comparable to Complainant's behavior and the Station Manager's conduct occurred years before Complainant's altercation. Complainant's argument of "If not, what was it, prima facie case" does not establish that discriminatory animus motivated the Agency's actions in this matter.
Similarly, Complainant has not established that the Agency acted with discriminatory or retaliatory motivation with regard to the other incidents at issue. He has not refuted S3's statement that his request for emergency leave did not meet the Agency's criteria, nor has he refuted S4's and the Postmaster's statements that the bulk area was cluttered. The record contains no evidence that S4 conducted the investigative interview because Complainant engaged in protected EEO activity. The record likewise contains no evidence that the Agency prevented Complainant from taking or rescheduling the General Clerk test because of his protected activity. Complainant had the same opportunity to take the test that the other two candidates had.
The evidence does not establish that the Agency's reasons for its actions are unworthy of credence or that discriminatory reasons more likely motivated the Agency. We find, therefore, that Complainant has not shown that the Agency took the actions at issue because of his race, color, sex, national origin, or protected EEO activity.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. 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).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. As noted above, the evidence does not establish that the incidents alleged by Complainant occurred because of his race, color, sex, national origin, or protected EEO activity. A finding of discriminatory harassment is precluded based on our determination that Complainant did not show that the Agency's actions were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to a hostile work environment based on race, color, sex, national origin, or protected EEO activity.
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 final decision and its finding of 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. 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
_9/25/17_________________
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.
2 Complainant also alleged that the Agency discriminated against him on the bases of age, religion, and disability and in reprisal for prior protected EEO activity. He subsequently withdrew those bases.
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