[Redacted], Erich B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Nov 28, 2022

Appeal No. 2021004130 (E.E.O.C. Nov. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004130 Hearing No. 451-2020-00132X Agency No. 4G-780-0122-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 7, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Leon Valley Branch in San Antonio, Texas. On June 19, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment based on age (41) and in reprisal for prior protected EEO activity under Title VII and the ADEA when: 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. 2021004130 2 1. On March 5, 2020, March 26, 2020, and April 16, 2020, he was given an investigative interview; 2. On April 2, 2020, he was issued a 14-Day Suspension for Unacceptable Conduct/Failure to Follow Instructions; 3. On April 15, 2020, he was not afforded the opportunity to work overtime; and 4. Beginning May 15, 2020, and ongoing, management followed, watched, and took pictures of him without his consent. 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 EEOC Administrative Judge. Complainant requested a hearing but subsequently withdrew his request. Consequently, 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 instant appeal followed. In its final decision, the Agency first found that claims 2 and 3 constituted tangible employment actions and analyzed them separately under a disparate treatment analysis. Assuming Complainant could establish a prima facie case of discrimination, the Agency found that management had articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual. Regarding claim 2, the Agency concluded that Complainant’s immediate supervisor (Supervisor 1), Supervisor-Customer Services, issued him a 14-day suspension for failing to follow instructions to deliver certain mail parcels with his right hand. While Complainant was delivering mail, a route examiner observing Complainant reported to management that Complainant delivered certain kinds of mail with his left hand. Prior to the route examiner’s observation, Complainant’s second-level supervisor (Supervisor 2), Station Manager-Customer Services, had instructed him not to use his left hand when delivering mail (apparently right- handed delivery was considered to be faster). Complainant’s 14-day suspension came after he had been issued other discipline, including a letter of warning and other suspensions for failing to follow instructions. Regarding claim 3, the Agency found that, based on the record, Complainant had worked one hour of overtime on April 15, 2020. The Agency therefore found that Complainant failed to establish that this claim occurred as alleged, as he had in fact worked overtime on the date in question. As to the remaining two claims, which the Agency analyzed using the harassment framework, the Agency concluded that its actions were not based on discriminatory or retaliatory animus. Regarding claim 1, the Agency found that Supervisor 1 had conducted all three interviews with Complainant. Supervisor 1 gave Complainant the first interview, which took place on March 5, 2020, because the route examiner reported that Complainant had delivered mail with his left hand instead of his right. 2021004130 3 The second interview, on March 26, 2020, involved accusations that Complainant had spoken unprofessionally to another supervisor and had yelled at her. The third interview, which took place on April 16, 2020, involved allegations that Complainant had overestimated the amount of overtime he required when making overtime requests. Regarding claim 4, the Agency found that Supervisor 2 had observed Complainant on the two days for which he was the only carrier to request overtime. Supervisor 2 did so in order to ensure the overtime requests were necessary. On one of those days, Supervisor 2 observed Complainant finish his route in under 8 hours even though he had requested an hour of overtime. On the other day, Supervisor 2 saw that Complainant had used only 23 minutes of overtime despite Complainant requesting two hours of overtime. As to the allegation that Supervisor 2 took photographs of Complainant, Supervisor 2 admitted he took Complainant’s photograph based on a grievance filed by Complainant in which he complained that the doors of apartment mailboxes hit his elbows while delivering mail. Supervisor 2 photographed Complainant to show that the doors did not hit Complainant’s elbows. The Agency ultimately concluded that Complainant could not establish that the Agency’s actions were motived by his protected bases. Even assuming that the incidents happened as alleged, the Agency further found that management’s conduct was not sufficiently severe or pervasive to constitute harassment. 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”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination or retaliation. Regarding the discrete incidents in claims 2 and 3, we find that Complainant failed to show that any of the actions were motivated by his protected bases. Complainant was issued the 14-day suspension because he had failed to follow multiple instructions to deliver mail with his right hand instead of his left. On April 15, 2020, Complainant was in fact approved for overtime.2 2 On appeal, Complainant mentions several times earlier in April when his overtime requests were denied, but he does not dispute that he received overtime on the date at issue in this complaint. 2021004130 4 Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claims 2 and 3. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions taken by the Agency were motivated by discrimination or retaliation. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to claims 1 and 4, we find that Complainant failed to show the Agency subjected him to harassment. The record fails to establish that the alleged incidents were based on Complainant’s protected characteristics. On appeal, Complainant also argues that he never gave consent to be photographed by Supervisor 2 and that the surveillance occurred close in time to his prior protected EEO activity. Even if true, Complainant fails to establish that Supervisor 2 took these actions based on Complainant’s age or in retaliation for prior EEO activity. Complainant does not dispute on appeal that he overestimated several of his overtime requests or that he had made a complaint about apartment mailbox doors hitting his elbow. Even assuming a prima facie case of reprisal, Complainant has not established by a preponderance of the evidence that Supervisor 2 took these actions due to Complainant’s protected bases. Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021004130 5 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004130 6 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 November 28, 2022 Date