0120162688
01-19-2018
Joey B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joey B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120162688
Hearing No. 440201500166X
Agency No. 1J609000915
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission"), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 12, 2016 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 was employed as a Laborer Custodial (PS-4) at the Agency's Chicago Network Distribution Center in Forest Park, Illinois.
On April 21, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity2 when, on February 6, 2015, he was placed on Emergency Placement.
Prior to the instant complaint, Complainant filed two other EEO complaints with the Agency, one in 2009, the other in 2012, which he cites as the basis for the instant reprisal allegation. Complainant's first level supervisor ("S1"), a Supervisor of Maintenance Operations, and his second level supervisor ("M1"), a Maintenance Manager, did not know about Complainant's past EEO activity during the relevant time frame for the instant complaint. However, the responding management official ("RMO") for this complaint, another Supervisor of Maintenance Operations ("S2"), was aware of Complainant's prior EEO activity during the relevant time fame because he was also an RMO in Complainant's 2012 EEO complaint.
According to Complainant, on February 6, 2015, he had just finished lunch and went to the time clock to punch back into work. His coworker ("C1") was sitting on a scooter next to the clock, barking like a dog at S2 who was walking over from the opposite direction. S2 approached Complainant, and when he was less than arm's length away, he asked, in a threatening manner, if Complainant was "cat calling" him. Complainant responded that he had nothing to do with the interaction between S2 and C1 and to "get out of my face." Complainant punched back in and returned to work. S2 went to his office. Two hours later, Complainant was paged to report to the maintenance office, where two Chicago Division Postal Police Officers ("PPO") were waiting. The PPO, S2 and M1 told Complainant, with his Union Representative present, that he would be placed on Emergency Placement to "off duty" status because of his "physical altercation" with S2. Complainant provided the PPO with a written statement denying that any physical contact between himself and S2 occurred, but refused to sign the Emergency Placement form. Complainant was escorted from the facility and instructed to return the next day.
According to S2, on February 6, 2015, he was in the general area of the time clock when he heard meowing. For months, Complainant had been meowing at S2 and calling him a cat. S2 approached both Complainant and C1, and, from at least several feet away, asked Complainant if he just "cat called" him. Complainant asked, "are you a cat," to which S2 responded "no I am not." S2 found Complainant's voice and manner intimidating, as Complainant got within three inches of S2's face and said, "you are a cat." Then, Complainant chest bumped S2 twice. S2 sought medical treatment a few days later, and was diagnosed with contusions on his chest, which his doctor attributed to the chest bump. S2 retreated to his office and reported the assault to the U.S. Postal Inspector for the Chicago Division, along with S1 and M1.
According to C1, the only eyewitness to the events at issue on February 6, 2015, he saw S2 and made a gesture like he was calling a dog, while whistling, which was a joke they shared in the past. Then, S2 approached Complainant and asked, "are you talking to me?" C1 was about 7 to 10 feet away, so he did not hear Complainant's reply, only that "the tone of the conversation turned negative." Complainant and S2 were in each other's personal space, and they chest bumped twice but it was unclear who initiated the contact.
S1 issued an Emergency Placement to "off-duty status" to Complainant for "Conduct Unbecoming of a Postal Employee as Evidenced by Your Threatening and Unacceptable Behavior Toward a Supervisor," with M1 as the concurring official. M1 recalled that S2 appeared to be shaking when he informed her of the incident. Both S1 and M1 cited violation of the Agency's "Zero Tolerance Policy" and other internal policies, including employee conduct policies in the Collective Bargaining Agreement ("CBA") between the Union and the Agency, as their rationale for the Emergency Placement. They also noted that Complainant had a history of conduct issues resulting in Emergency Placements.
On February 7, 2015, the Manager of Distribution Operations ("M2"), who was not in Complainant's chain of command but at the time was highest supervisory level on the floor, conducted an inquiry to determine what happened. Based on M1 and S1's accounts, she found that Complainant violated the Agency's Zero Tolerance Policy, and considered his previous conduct-related Emergency Placements and disciplinary actions in her decision. M2 met with Complainant, even though he requested, but did not have a Union Representative present. Ultimately, no pre-disciplinary meeting occurred because Complainant denied knowing what the Emergency Placement was about. Complainant was placed on back on Emergency Placement.3
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 ("AJ"). Although Complainant requested a hearing, he failed to submit prehearing submissions by the December 18, 2015 deadline, and did not respond to the AJ's January 28, 2016 Show Cause Order. Finding Complainant's ongoing failure to participate in the hearing process amounted to contumacious conduct, the AJ dismissed Complainant's request for a hearing with prejudice and remanded the matter to the Agency, to issue a final decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed.
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").
Sanctions
The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap. 7, � III(D). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treas., EEOC Appeal No. 07A00015 (Jul. 17, 2001). The purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. United States Postal Serv., EEOC Appeal No. 07A30133 (Jun. 16, 2005).
We have previously upheld AJ dismissals of hearing requests as a form of sanctions against complainants that fail to engage in the prehearing process. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). In this case, Complainant's appeal does not dispute (or address) the AJ's explanation that he dismissed Complainant's hearing request as sanctions for failure to engage in the hearing process. We note Complainant engaged in similar conduct during the investigation of his formal complaint. Further, we find the record is sufficiently developed for us to reach a decision without a hearing. Therefore, we find the AJ's sanctions were appropriate in this instance.
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 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).
These established orders of analysis need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Agency's legitimate nondiscriminatory reason for placing Complainant on Emergency Placement is that based on S2 and C1's accounts of the February 6, 2015 incident, along with Complainant's history of conduct issues, it found that Complainant violated Agency and CBA codes of employee conduct, particularly its Zero Tolerance Policy. The stated purpose of the Agency's Zero Tolerance Policy is to "ensure a safe working environment for all employees." In relevant part, the policy provides that:
Threats, assaults, or other acts of violence committed [by an Agency employee] against other [Agency] employees... regardless of the initiator, [will elicit] an immediate and firm response, which will result in corrective action, up to and including removal from the [Agency].
On appeal, Complainant does not directly address the alleged conduct violation. Instead, he reiterates his initial argument, contending that over his nearly 8 years of employment with the Agency, he had no prior disciplinary action on his record, and that the emergency placement was "based on false accusations." Specifically, Complainant contends that he was "falsely accused of an assault; which never took place. The [Agency] has never investigated this incident or verified the records put forth on this accusation of assault. The entire incident [was] based on one individual's statement." Complainant further alleges that S2 "submitted foraged documentation from doctors that stated he was injured."
We find the Agency provided sufficient evidence that this matter was thoroughly investigated, not only by an EEO Investigator, but by M2, who conducted an internal inquiry, the Union, which filed a grievance with Agency Management on Complainant's behalf, and by the Post Master Inspector General. Documents in the record contradict Complainant's contention that the Emergency Placement was based on one individual's statement. The EEO Report of Investigation includes sworn affidavits from S1, S2, and M1 among others, as well as copies of Complainant's prior Emergency Placements and disciplinary actions related to his conduct spanning 7 years. The February 18, 2015, Postal Inspection Service Investigative Memorandum is accompanied by written statements from S2 and Complainant, as well as detailed summaries of interviews with S2, Complainant, and C1, conducted by the Postal Inspector all taken a week after the incident. We have also reviewed documentation of M2's internal inquiry immediately after the incident, and documentation from the Union inquiry and the resulting step 1 and step 2 grievances.
We note that the Union, while ultimately unsuccessful with its grievance, emphasized in its argument the significant differences in Complainant's and S2's accounts of the incident. We have also been mindful of these differences while reviewing the record. Likewise, we note that S2 responded affirmatively in his EEO affidavit that past experiences with Complainant, including the EEO activity, were a factor in his decision to place Complainant on Emergency Placement in an Off-Duty Status. Although he did not provide an affidavit, we have taken Complainant's pre-complaint statement alleging that S2's account of the incident was false and that his prior Emergency Placements were also based on S2's false statements into account as well. However, we found that most of the Emergency Placements included in the EEO record were signed by Complainant's prior supervisor and management officials other than S2, and are accompanied by witness statements by coworkers and supervisors other than S2. Therefore, we find the Agency's use of Complainant's past conduct as one factor to determine whether his actions could be perceived as threatening enough to violate the Zero Tolerance Policy, to be a legitimate nondiscriminatory reason for issuing the Emergency Placement.
Complainant has not established that the Agency's stated rationale, that it was acting in accordance with its policies, including the Zero Tolerance Policy was pretext for discrimination. The only evidence he offers on appeal are bald assertions that S2's accusations and medical documentation were false. Moreover, evidence in the record supports the decision to place Complainant on Emergency Placement. Specifically, C1 witnessed physical contact-two chest bumps--during a "negative" exchange between Complainant and S2. This third-party account, along with knowledge of Complainant's past conduct, supports a conclusion that S2 felt legitimately threatened by Complainant. Therefore, regardless of whether medical attention was required or who initiated the contact, S1 and M1's decision to place Complainant on Emergency Placement was consistent with the Agency's Zero Tolerance Policy.
Retaliatory Harassment
Although the AJ and Agency framed Complainant's claim as a disparate treatment claim, a fair reading of the record indicates that Complainant also intended to allege that S2's actions constituted retaliatory harassment. For instance, in his formal complaint, Complainant characterizes S2's conduct generally as harassment; and, on appeal, Complainant clarifies his complaint by restating allegations in the record that the alleged discriminatory incident arose because management officials made false accusations against him. Therefore we find a harassment analysis is also appropriate for this case.
To prove a harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. As this is a reprisal allegation, Complainant must also prove that the conduct was taken because of his prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999).
After thoroughly reviewing the record, and the contentions on appeal, including those not specifically addressed herein, other than bare assertions that management officials provided false statements and documents, Complainant has not provided evidence to suggest that what occurred was motivated by retaliatory animus rather than what S2 perceived as threatening conduct in violation of the Agency's Zero Tolerance Policy.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination occurred as alleged is AFFIRMED.
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
January 19, 2018
___________________________________ Carlton
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 discrimination based on genetic information in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), 42 U.S.C. � 2000ff et seq., which prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. � 1635.1. Genetic information means information about (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disease or disorder in family members of such individual (family medical history). 29 C.F.R. � 1635.3(c). Complainant's complaint is devoid of any allegations or facts regarding genetic tests, the genetic tests of his family members, or his family medical history. Given Complainant's lack of response to the Agency's multiple requests for further information during the pre-complaint and investigative stages, and that Complainant does not reference it on appeal, we consider Complainant to have waived his allegation of discrimination on the basis of genetic information. Alternately we dismiss Complainant's allegation of discrimination on the basis of genetic information for lack of specificity. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120122328 (Jun. 20, 2013).
3 Because of the February 6, 2015 incident, M2 issued Complainant a "Notice of Proposed Removal" on April 6, 2015, with M1 as the concurring official, and on May 15, 2015 the Plant Manager issued a "Letter of Decision" in favor of removal. When this complaint was forwarded for a hearing, Complainant was on leave without pay status pending a grievance decision on the matter. While relevant, we decline to consider these personnel actions in our analysis given that Complaint was provided with multiple opportunities to raise them with the AJ and failed to do so.
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