Roland D.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 6, 2020

2019005517 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roland D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019005517 Agency No. 4J-530-0134-18 DECISION On July 31, 2019, 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 July 25, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, 01/F, at the Dr. Martin Luther King Jr. Station (MLK) located in Milwaukee, Wisconsin. On November 13, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for prior protected EEO activity when: (1) on August 29, 2018, a supervisor called Complainant in from his route to write him up and he felt harassed; (2) on September 5, 2018, Complainant was issued a Seven-Day Suspension; (3) on September 18, 2018, Complainant was issued a 14-Day Suspension; (4) on October 13, 2018 Complainant was issued a Notice of Removal; (5) on December 22, 2018, Complainant was instructed to return to work, but was charged Leave without Pay (LWOP) for December 15-21, 2018; (6) on December 29, 2018, and other unspecified dates, Complainant's 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. 2019005517 2 request for Family and Medical Leave Act (FMLA) protected leave was denied; (7) on January 7, 2019, Complainant was given a “Day in Court” (ADIC) interview; (8) on unspecified dates, Complainant was charged LWOP for FMLA-protected absences; (9) on January 29, 2019, Complainant was put on Emergency Placement in an Off-Duty Status Without Pay, and called into the office on February 12, 2019 for an Investigative Interview (II); (10) on February 5, 2019, Complainant was notified that he had been charged absent without leave (AWOL) on January 30, 2019, and February 5, 2019; and (11) on March 11, 2019, Complainant was issued a Seven-Day Suspension. After 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 reprisal as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. FACTUAL BACKGROUND Claim 1 - Written Counseling Complainant’s supervisor (S1A) started working at MLK on August 28, 2018, had never met Complainant before that date, and knew nothing about him. S1A asserts that on August 28, 2018, he instructed Complainant to use the Load Truck feature,2 but Complainant refused to follow the instruction and stated: "I'm not doing it, do what you're gonna do." On August 29, 2018, Complainant was asked to come into the office for an ADIC regarding his refusal to follow management's instructions the day before. Complainant was provided with union representation when he returned to the office for the ADIC. The Manager, Customer Service, (M1) claimed that S1A notified him of his plans but he was not involved in the decision to call Complainant in from his route. M1 stated that S1A witnessed his interaction with Complainant wherein he also approached Complainant at his case and told him that he was to use the Load Truck feature and Complainant responded that he would not use it. M1 further testified that all carriers had been notified in prior service talks that they were to use the Load Truck feature to make parcel delivery more accurate and efficient, and that use of the feature was not optional. 2 In October 2017, the Postal Service enabled a new feature on the Mobile Delivery Device (MDD) called Load Truck. This feature involves letter carriers scanning their packages as they load their vehicle and the MDD provides them with visual and audible information regarding the delivery sequence number of the package and a numbered section (1 through 6) of the vehicle in which the package should be placed. During the relevant time period, the Load Truck feature was required of all carriers at MLK as part of their daily tasks. 2019005517 3 Claim 2 - Seven-Day Suspension on September 5, 2018 S1A asserted that he gave Complainant an instruction, which he blatantly refused to follow, and issued Complainant a Seven-Day Suspension after conducting the ADIC. S1A further asserted that M1 and Labor Relations reviewed the proposed suspension (which constituted progressive discipline) and that it was proposed to correct Complainant’s conduct. Complainant refused to answer any questions during the ADIC and disagreed with the reason he was given for the proposed suspension. S1A claimed that he was unaware of any issues Complainant had with management prior to his (S1A) arrival at the station and reiterated that he had never met Complainant before August 28, 2018. M1 stated that he was the concurring official in the issuance of the suspension, as well as a witness to Complainant's insubordination with respect to using the Load Truck feature. M1 continued that S1A investigated and issued the suspension. M1 declared that Complainant was aware, through service talks of his obligation to use the Load Truck feature, and that he had also been informed of his obligation to follow instructions at his orientation. The suspension was later rescinded as a result of a grievance settlement. Claim 3 - 14-Day Suspension on September 18, 2018 On August 29, 2018, (following Complainant’s participation in the ADIC pertaining to his failure to use the Load Truck feature the day before) Complainant stated to S1A “I’m sick and I’m going home.” Before Complainant went home, S1A instructed him to bring acceptable medical documentation upon returning to work, to show that he was medically incapacitated to finish work for the day. Complainant then stated: “Get the F**k out of here.” S1A related that he issued a 14-Day Suspension to Complainant after review by M1 because of Complainant's unacceptable conduct in his statement to S1A. S1A indicated that Complainant knew that such conduct was unacceptable and that at the ADIC, Complainant claimed that he was talking to himself and not to S1A when he said it. M1 stated that he was the concurring official in the issuance of the suspension. M1 asserted that he heard a disruption on the workroom floor and he approached Complainant who told M1 that S1A was trying to mess with him. According to M1, S1A claimed that Complainant had just “cussed him out” and that he was instructed to leave the unit. M1 instructed Complainant to follow S1A’s instruction and leave the unit. M1 asserted that Complainant was informed of his obligations regarding relevant policies at his orientation, as well as at service talks. The suspension was later rescinded as a result of a grievance settlement. Claim 4 - Notice of Removal on October 13, 2018 S1A issued the Notice of Removal (NOR) to Complainant, with M1’s concurrence. S1A explained that the NOR was issued because Complainant failed to follow instructions to produce medical documentation of his absence on August 29, 2018. 2019005517 4 Management provided Complainant an ADIC where he had an opportunity to respond to the NOR. According to S1A, Complainant responded by claiming that he submitted the medical documentation to the medical unit and threatened to file an EEO complaint. Management informed Complainant that the health unit had no record of ever receiving the relevant medical documentation. S1A asserted that his progressive discipline was an attempt to correct Complainant's insubordinate behavior. M1 concurred with the decision to issue the NOR. M1 declared that Complainant was aware of his obligations regarding rules and regulations. The removal action was later reduced to a letter of warning as a result of a grievance settlement. Claim 5 - LWOP for December 15-21, 2018 Complainant claimed that he received a notice instructing him to return to work on December 22, 2018, but he was charged LWOP on December 16-21, 2018. Complainant alleged that he should have been compensated for that time period. S1A asserted that Complainant was charged LWOP on December 16-21, 2018, pending termination. However, once he became aware of a pending settlement through the grievance process, the LWOP charges were removed and Complainant received a pay adjustment for the hours that were entered as LWOP. Claim 6 - Denied FMLA Leave On January 7 and 9, 2019, Complainant's leave was approved pending his FMLA certification. S1A does not have the authority to approve or disapprove FMLA requests, but rather accepts leave requests, then confirms the employee’s FMLA status with the final approval decision being made by the FLMA office, the Medical Unit, and Human Resources Shared Service Center (HRSSC). Claim 7 - January 7, 2019 ADIC Interview/Overtime S1A acknowledged that he gave Complainant an ADIC on January 7, 2019, in the presence of his union representative because Complainant had failed to follow instructions that all carriers must follow, regarding the assignment of overtime. S1A related that Complainant had refused to work overtime that management directed him to work. S1A further testified that while Complainant refused to participate in the ADIC, no discipline was issued. Claim 8 - LWOP Instead of FMLA in January and February 2019 Complainant was charged LWOP on December 15-20, 2018, January 28 and 29, 2019, and February 12, 2019. Complainant's FMLA-protected leave requests were denied on October 2, 15, and 27, 2018, November 9, 2018, December 29, 2018, February 28, 2019, and February 16, 2019. According to S1A the FMLA-protected leave would have been denied by the FMLA office or the HRSSC because an approved FMLA case was not open or because the proper paperwork had not been submitted by Complainant. S1A declared that he entered LWOP pending termination for the dates of December 15, 17, and 18, 2018, as Complainant was out of work because of the pending NOR, and he had not yet been informed that Complainant's case had been settled. 2019005517 5 S1A further explained that he placed Complainant on LWOP for February 12, 2019, because Complainant had failed to request an available leave category (e.g., sick leave or annual leave) and had not received prior approval for “administrative leave.” According to S1A and another supervisor (S1B), each time they verified Complainant’s status with HRSSC, they were informed that Complainant did not have an approved FMLA case. S1A asserted that each time he relayed this information to Complainant, he would not discuss the matter with him. S1A contended that instead of discussing the matter, Complainant requested copies of the denials to put in his EEO complaint. S1B corroborated that MLK staff did not have authority to approve or deny FMLA and that Complainant would not cooperate with management by informing them of what type of leave he wanted prior to his FMLA approval by HRSSC on March 5, 2019. Claim 9 - Off-Duty Status Without Pay Complainant was put on Emergency Placement on January 29, 2019 and the Acting Manager, MLK Customer Service (AM) issued him the letter putting him on Emergency Placement on January 31, 2019. S1B asserted that on January 29, 2019, he gave Complainant a Form 3971 for his absence on January 28, 2019. However, Complainant refused to sign it. Instead he made copies of it and threw it on the supervisor's desk. S1B also asserted that Complainant told other carriers that they did not need to listen to management and told them about his EEO complaint. S1B testified that he approached Complainant and asked to speak to him in the office, but he refused. S1B also stated that he then gave Complainant a direct order to go to his office, and he responded that S1B should do what he needed to do, but that he was not going into the office. S1B related that after Complainant became loud and disruptive on the workroom floor, he instructed Complainant to leave the facility and asked for his badge and timecard, which Complainant refused to give him. S1B further affirmed that after Complainant punched out, as he was leaving the facility, he said to S1B “get the F**k out of here.” S1B noted that he told Complainant to return to the office the next day at 10:00 a.m., but that Complainant said that he was not going to come in. On February 8, 2019, S1B sent a letter to Complainant with instructions to report for an II on February 12, 2018. On February 11, 2019, AM sent a second letter that rescinded the Emergency Placement and instructed Complainant to report for duty on February 12, 2019. Complainant’s II was moved to February 14, 2019. AM claimed that he did not issue the Notice of Emergency Placement, and that he was unaware of it until after it had been issued. AM also noted that since Emergency Placement is an administrative action taken to defuse a volatile situation (rather than correcting insubordinate behavior) placing Complainant on Emergency Placement was not appropriate. AM corrected the error by rescinding the Emergency Placement and paying Complainant for the time he was in the non-duty status. 2019005517 6 AM added that he sent Complainant the Notice to Report for an II on February 12, 2019, to investigate the conduct, which included his refusing to go to the office as instructed by the supervisor, disruption on the work room floor, and use of profanity towards his supervisor, that led to Complainant being sent home on January 29, 2019. Complainant failed to show up for the scheduled II but claimed that S1B had put him off work for no reason. Claim 10 - AWOL on January 30 and February 5, 2019 Complainant claimed that he was charged AWOL on January 30, 2019 and February 5, 2019. Complainant was charged LWOP for January 29, 2019 from the time he punched out, but was charged as AWOL for January 30, 2019, as he did not report to work on that date despite S1B’s instruction. MLK was closed on January 31, 2019 because of weather and Complainant was paid for that day. Complainant was not scheduled to work from February 1 to February 3, 2019. Complainant was given other paid leave for February 5-9, 2019, and S1B denied that Complainant was charged AWOL for February 5, 2019. Claim 11 - Seven-Day Suspension on March 11, 2019 S1B related that on January 29, 2019, Complainant failed to follow instructions and used profane language in violation of Agency policy and regulations. According to S1B, during the II, Complainant requested a union representative, argued that his union representative said that he did not have to go into work without representation, denied stating to S1B: “do what you have to do;” and argued that management did not ask for his timecard until he had punched out. 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”). Disparate Treatment The Commission notes that 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). He must generally 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 Constr. Corp. 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. 2019005517 7 To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We shall assume arguendo that Complainant set forth a prima facie case of reprisal, each management official testified that Complainant’s prior EEO activity was not a factor in any agency action toward him. The record show that management issued the various disciplinary actions to Complainant because of his insubordinate behavior and disruptive conduct (e.g., blatant refusal to perform work as instructed, blatant refusal to come to the supervisors’ office as instructed, telling his coworkers not to listen to the supervisors, and his use of profane language towards management officials). The fact that most of the discipline was rescinded, in whole or in part, during the grievance process, does not prove retaliatory motive. Without a showing of pretext or other compelling evidence, we find insufficient evidence to conclude that management’s actions were motivated by Complainant’s threats of EEO action, rather than Complainant’s insubordinate behavior and disruptive conduct. We note that Complainant’s dispute with S1A occurred on S1A’s first day at MLK when S1A had no knowledge of Complainant’s workplace behavior (including any statements related to potential EEO complaints) but did encounter Complainant’s blatant refusal to follow a direct order by both S1A and M1. The record shows that August 28, 2018 was the first but not the only incident where Complainant engaged in blatant and disrespectful insubordination. To the extent that any of the discipline proposed by S1A seems excessive and unreasonable, the preponderance of the record establishes that routine supervision and/or personality conflicts are the likely cause, rather than unlawful retaliatory animus. We note that most of the proposed actions by S1 resulted in no discipline. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to reprisal as alleged. Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment regarding these incidents, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2019005517 8 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As a result, the Commission finds that Complainant has not established that he was subjected to a retaliatory hostile work environment as alleged. CONCLUSION Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2019005517 9 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 October 6, 2020 Date