0120151459
09-25-2017
Joseph B.,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
Joseph B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120151459
Agency No. 1K-281-0049-13
DECISION
On March 16, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 10, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that he was subjected to discrimination and/or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether the Agency's FAD correctly found that Complainant was not subjected to discriminatory harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Processing Clerk at the Agency's Charlotte North Carolina Logistics and Distribution Center facility in Charlotte, North Carolina. On November 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), disability (anxiety/depression), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 20, 2013, he worked 0.21 hours of penalty overtime that were deleted,
never corrected and he was never paid;
2. On August 5, 2013, his managers stared at him, took pictures of him working, told him they shouldn't have to babysit him and refused to provide him with worker's compensation forms;
3. On August 20, 2013, he was escorted out of the building and was refused reentry to retrieve his glasses which he needed in order to safely operate a vehicle;
4. On September 20, 2013, he was issued a Letter of Warning for Failure to Follow Instructions;
5. On September 20, 2013, he was instructed to provide medical documentation to
support his absence of September 6, 2013;
6. On October 1, 2013, his manager said, "he had something for [Complainant] and he wasn't going to like it";
7. On or about October 17, 2013 and November 8, 2013, his manager told his union steward that he would be written up for delaying the mail;
8. On November 15, 2013, his manager told him that he was not doing his job;
9. On November 18, 2013, he was subjected to an Investigative Interview;
11. On January 22, 2014, Management told him that he could not drink coffee on the workroom floor and could not put his lunch box on the table by the machines;
12. On January 28, 2014, he was subjected to an investigative interview for failure to follow instructions - drinking coffee on the workroom floor.2
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. In accordance with Complainant's request, 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 FAD found that claims 1 and 4 were discrete acts that could be independently analyzed. The Agency found that assuming arguendo that Complainant established a prima facie case of discrimination, management articulated legitimate, nondiscriminatory reasons for its actions. The record evidence demonstrated that Complainant's penalty overtime was erroneously deleted, but the matter was rectified when the deleting official, took corrective action to pay Complainant for the .21 hours of penalty overtime to which he was entitled.
With respect to claim no. 4, Complainant was given a LOW for unacceptable conduct/failure to follow instructions when he attempted on two occasions to return to work without complying with written instructions to have his return cleared by the nurse. The Agency found that Complainant did not show that the Agency's reasons were pretext for discrimination.
With respect to claims 2, 3, 5, 6, 7, 8, 9, 11, and 12, the Agency found that the incidents described by Complainant were work-related matters that were not severe or pervasive enough to establish a hostile work environment. Specifically, with regard to claim no. 2, where Complainant alleged that management stared at and took pictures of him, told him that they should not have to babysit him and refused him worker's compensation forms, management indicated that it was taking pictures of the machinery and the only reason that Complainant was in one of the photos was because he was working on a machine. Also, there was no evidence that he was refused a form.
Regarding claim no. 3, Complainant alleged that he was escorted out of the building and refused reentry. Management indicated that Complainant was escorted out of the building because he was not medically cleared as required, and after a brief delay he was allowed to go in to retrieve his glasses. With claim no. 5, Complainant alleged that management instructed him to provide medical documentation to support his absence on September 6, 2013. Management acknowledged that Complainant was asked to do this. In claim no. 6, Complainant alleged that a supervisor said that "he had something for [him] and he wasn't going to like it." Complainant did not hear this comment himself but was told by a coworker who provided a sworn statement regarding what he heard. The two managers however maintained that they had no recollection of making the statement.
Further, with regard to claim no. 7, Complainant alleged that the supervisor told the union steward that she was going to write him up for delaying the mail. The union steward however, denied that this occurred. In claim no. 8, Complainant maintained that this same supervisor told him that he was not doing his job because his rejects were backing up. The supervisor acknowledged making this statement as Complainant was having a problem doing his job. With respect to claim no. 9, Complainant alleged that he was subjected to an investigative interview. Management acknowledged that this occurred because Complainant did not follow instructions. In claim no. 11, Complainant alleged that he was instructed to not drink coffee on the workroom floor and that he could not put his lunch box on the table by the machines. Management again acknowledged making this statement. Finally, with regard to claim no. 12, Complainant alleged that an investigative interview was conducted for failure to follow instructions regarding the matters raised in claim 11. Management alleged that the investigative interview was conducted because after he was reminded of the policy to not have food or drink around the machines, Complainant did not follow instructions about not drinking coffee on the floor. Management indicated that all employees were informed of the policy and maintained that it was equally applied regardless of protected bases. Moreover, management indicated that while it did conduct investigative interviews regarding several matters, Complainant did not receive any disciplinary or corrective actions after the investigative interviews.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that it was the EEO Specialist's responsibility to schedule pre-complaint counseling and whether or not he responded to her attempts, it was still her responsibility to schedule pre-complaint counseling in a timely manner.
Complainant also contends that the FAD states that the events of August 19, 2013, were untimely filed, however, the events were referenced throughout the decision. He asserts that the events of August 19, 2013, were not untimely filed as they were a precursor to events in Claim 3. Further, Complainant maintains that while management filled out the paperwork for reimbursement for his penalty overtime, his paystubs show that he did not receive it.
Complainant asserts that he established a prima facie case of discrimination as to all of his claims but the Agency did not articulate why he was treated differently than his comparators.
In response, the Agency asserts that assuming arguendo that Complainant established a prima facie cases of discrimination, he claims still fail, in toto, because management articulated legitimate non-discriminatory explanations for its actions and Complainant did not establish pretext. The Agency also maintained that Complainant did not show that the incidents he raised were severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
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").
At the outset, we AFFIRM the Agency's dismissal of claim no. 10 as untimely.
Disparate Treatment
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 or 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. 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. 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. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as were discussed above, and Complainant did not show that the Agency's reasons were pretext for discrimination.
With respect to Complainant's allegations on appeal, we find that other than his conclusory statements, he has not provided any evidence that supports his claim that he was subjected to discrimination. While the record clearly shows that Complainant had issues with management and did not agree with their management style, he did not show that discriminatory animus was involved regarding the managers decisions. Further, we find that Complainant did not demonstrate that he did not receive the penalty overtime as management alleged he did. Even though he submitted his paystubs he did not show that the payment was missing. Moreover, while Complainant contends that his comparators were allowed to do all things that he was told not to do, for example drink coffee on the work room floor, management explained that it is the Agency's policy not to allow eating or drinking near the machines for fear that the machines could be damaged. Management was very clear that this rule applied to all employees regardless of their protected bases.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) he belongs to 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 statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Upon review, we find that Complainant has not established a claim of harassment. We find that even if we consider all of Complainant's claims in total, the claims involve everyday work related incidents that are not severe or pervasive enough to establish a hostile work environment. The Commission has long held that the antidiscrimination laws are not civility codes and that the conduct complained of must be so objectively offensive as to alter the terms and conditions of one's employment. As we have found here, routine work assignments, instructions, and admonishments do not rise to the level of discriminatory harassment. DiFruscio v. Social Security Administration, EEOC Appeal No. 01982006 (September 13, 2000).
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination and/or harassment.
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 The Agency dismissed as untimely claim no. 10, where Complainant alleged that, on August 19, 2013, he was sent home and told to leave the premises.
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