[Redacted], Jon H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jul 25, 2022

Appeal No. 2021002480 (E.E.O.C. Jul. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jon H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021002480 Agency No. 1B-106-0014-20 DECISION 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 March 2, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor Distribution Operations at the Agency’s Mid-Hudson Processing and Distribution Center in Newburgh, New York. On May 13, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the bases of religion (Catholic) and age (64), and in reprisal for prior protected EEO activity, when: 1. on December 20, 2019, he was issued a Letter of Warning; 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. 2021002480 2 2. on or about December 23, 2019, he was denied a religious accommodation when his days off were changed from Sunday/Monday to Thursday/Friday; 3. on December 25, 2019, he was scheduled to work the Christmas holiday; 4. on unspecified dates, he was accused of not submitting required reports electronically; 5. on unspecified dates, his clock ring privileges were revoked; 6. on unspecified dates, he was given a direct order not to e-mail upper management; 7. on an ongoing basis, he was subjected to overbearing levels of supervision and micromanagement; 8. on unspecified dates, he was subjected to derogatory remarks regarding his job performance and was made the target of ridicule, both verbally and written; 9. on February 12, 2020, he was excluded from attending a training meeting in Albany; and 10. after Complainant was issued discipline on December 20, 2019, he was excluded from working “extra time,” while other managers continued to be scheduled for six or seven days per week.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that he was subjected to discrimination or harassment as alleged. The instant appeal followed, and Complainant provided arguments in support of his appeal. The Agency did not respond to Complainant’s appeal. 2 It appears that Complainant amended his complaint to add claim 10, but the Agency did not include an amended acceptance letter in the record or address the claim in the final decision. However, the Agency investigated the claim, and we find that there is sufficient information in the record to make a fair and reasoned determination on this claim. As such, we will address claim 10 in the instant decision. 2021002480 3 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 Chap. 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”). Religious Accommodation (Claim 2) Under Title VII, employers are required to accommodate the religious practices of their employees unless a requested accommodation is shown to impose an undue hardship. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.2(b)(1). The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires employees to demonstrate that: (1) they have a bona fide religious belief, the practice of which conflicted with their employment; (2) they informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against the employee. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984). Assuming, without finding, that Complainant has a bona fide religious belief which conflicted with his employment, we find that the evidence does not support that he informed the Agency of his religious belief or any conflict. In his affidavit, Complainant responded “unknown” when asked if the responsible management officials were aware of his religion, and the Plant Manager averred that she did not know Complainant’s religion. ROI at 189, 299. Complainant asserted that, when the Plant Manager informed him that his days off were changed from Sunday/Monday to Thursday/Friday, he immediately informed her that he could not work on Sundays. ROI at 226. However, the Plant Manager averred that Complainant never asked for a religious accommodation, either verbally or in writing. The Plant Manager explained that, when Complainant asked to step down from an acting manager position, he returned to his permanent duty assignment which had his non-scheduled days as Thursday/Friday, while the new acting manager would have non-scheduled days of Saturday/Sunday. ROI at 309. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew 2021002480 4 his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). In this case, there is no supporting evidence that Complainant requested a religious accommodation from the Plant Manager, or any other Agency official. Therefore, we find that Complainant has not established that the Agency failed to grant a religious accommodation. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Vet. Aff., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his age and religion, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for claims 1, 3, 5, 6, 9, and 10. For claim 1, the Plant Manager stated that Complainant informed her that an employee sustained an accident on November 12, 2019, and when they met to discuss the matter the next day, she instructed Complainant to immediately file an accident report. However, Complainant refused her direct order, and the Plant Manager issued the Letter of Warning. ROI at 301. Regarding claim 3, the Plant Manager explained that Complainant refused to work on Christmas, and feeling that Complainant would call out if scheduled, they got coverage from another manager and Complainant was not put on the schedule. The Plant Manager added that Complainant was the only supervisor who did not work that Christmas. ROI at 313, 316. For claim 5, Complainant had automatic clock privileges when he was acting in a manager position, but when he requested to step down, the privileges were removed. ROI at 322. Regarding claim 6, the Plant Manager confirmed that she instructed Complainant to stop emailing leadership directly due to his unprofessional behavior. Specifically, Complainant sent an email complaining of a shipment that was improperly strapped with spilled mail, and he 2021002480 5 described the incident as a “disgrace.” The Senior Plant Manager forwarded the email to the Plant Manager and directed her to address the matter with Complainant. ROI at 326-7, 428. For claim 9, the Plant Manager stated that she initially scheduled Complainant to go to Albany, but, when he unexpectedly called off work on February 8-10, 2020, she did not know if he would call out the rest of the week. Since hotel reservations were needed, the Plant Manager decided to send another manager. ROI at 349. Regarding claim 10, the Plant Manager responded that Complainant was scheduled to work six days per week through December 20, 2019, but when he stepped down from a manager position, another manager was brought in and Complainant was not needed to work six or seven days a week. ROI at 357. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant asserts that the Plant Manager’s response to claim 1 was pretextual because the Agency’s policy states that an employee’s supervisor or manager is responsible for an injury report. However, it is undisputed that Complainant was the supervisor who attended to the injured employee, and as such, the Plant Manager ordered Complainant to complete the injury report. It is further undisputed that Complainant refused, and the Plant Manager issued the Letter of Warning for Failure to follow instructions. ROI at 21, 300-3. Complainant provided no evidence that the proffered reasons are not worthy of belief and his bare assertions that the Plant Manager discriminated against him are insufficient to prove pretext or that her actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his age or religion, or in reprisal for prior protected EEO activity, for claims 1, 3, 5, 6, 9, and 10. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his bases for claims 1-3, 5, 6, 9, and 10. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of these actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on his age or religion, or in reprisal for prior protected EEO activity, for claims 1-3, 5, 6, 9, or 10. 2021002480 6 Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, 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 his 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. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). With retaliatory harassment, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. See Burlington N. and Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter complainant or others from engaging in protected activity. Id. Even crediting Complainant’s contentions that he belongs to a statutorily protected class based on his age, religion, and EEO activity, and that he was subjected to unwanted verbal conduct, we find that Complainant did not establish that any of the complained of conduct was based on a protected class. For claim 8, it is not clear from Complainant’s response if he was accused of a “blasé attitude”; paranoia; and being reprehensible and belligerent, or if he was blaming the Plant Manager of these things. ROI at 213. Regardless, there is no connection between any of the alleged harassment to Complainant’s age, religion, or EEO activity. In addition, while Complainant alleged harassment when was escorted from the building on January 3, 2020, the Plant Manager responded that Complainant came to work on a day that he was not scheduled or authorized to work, and he did not respond to her text messages. ROI at 341. For this incident, and Complainant’s allegations that he was accused of not submitting required reports electronically (claim 4) and subjected to overbearing levels of supervision and micromanagement (claim 7), we note that the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to 2021002480 7 rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Vet. Aff., EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no evidence that these work-related incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on his age or religion, or in reprisal for prior 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 finding that Complainant did not establish that the Agency subject him to discrimination or harassment based on his age or religion, or in reprisal for prior protected EEO activity. 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. 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. 2021002480 8 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. 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 July 25, 2022 Date