Mac O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019005975 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mac O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 20-1900-5975 Hearing No. 430-2019-00376X Agency No. 4K-280-0112-18 DECISION On August 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 8, 2019 final order 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. BACKGROUND During the period at issue, Complainant worked as a Ramp Clerk at the Agency’s Mid-Carolina Processing and Distribution Center (P&DC) in Charlotte, North Carolina. On September 10, 2018, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment/a hostile work environment based on race (African-American), sex (male), age (over 40), and in reprisal for prior EEO activity (current EEO activity) 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. 2 2019005975 1. on April 20, 2018, he was sent home prior to his scheduled end tour; 2. on or about April 20, 2018 through July 5, 2018, his driving privileges were revoked; 3. on May 5, 2018, he was issued a 14-Day Suspension dated May 1, 2018; 4. since July 6, 2018, on date(s) to be provided, he has been bypassed for overtime; 5. on a date to be provided, his work hours were changed; 6. on October 23, 2018, he became aware that other employees had been trained on new vehicles four months before he was scheduled for training; 7. on November 7, 2018, a supervisor caused him to miss an overtime opportunity when the supervisor did not call him until 2:01 p.m. for overtime that began at 2:00 p.m., while she called another employee not on the Overtime Desired List earlier in the day; and 8. on November 7, 2018, he became aware that a co-worker was allowed to work overtime on his day off while he was not given the same opportunity.2 After its investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ).3 Complainant timely requested a hearing. Thereafter, the AJ notified the parties sua sponte of an intent to issue a decision without a hearing. Both Complainant and the Agency responded to the notice. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2 The record reflects that claims 6-8 were later amended to the instant formal complaint. 3 During the investigation, Complainant withdrew claim 5 leaving claims 1-4 and 6-8 before the AJ 3 2019005975 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant did not establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period Complainant was a Ramp Clerk at the Agency’s Mid-Carolina P&DC in Charlotte, North Carolina. Regarding claim 1, Complainant asserted that on April 20, 2018, he was sent home prior to his scheduled end tour. The AJ noted that the Manager Distribution Operations (African-American female, over 40), stated that she instructed Complainant home prior to his schedule end tour “for performing an Unsafe Act when he dismounted his government vehicle and left the door open with the engine running. During the notification the Complainant kept repeating ‘I know. I know.’” The Acting Manager Distribution Operations (African-American female, over 40) stated that during the relevant period she was Complainant’s manager. She stated that on April 20, 2018, she was not at work that day but was notified by the Manager concerning Complainant performing an unsafe act with his government vehicle. Regarding claim 2, Complainant alleged that on or about April 20, 2018 through July 5, 2018, his driving privileges were revoked. The Manager, In-Plant Support (Caucasian male, over 40) explained that during the relevant period Complainant’s driving privileges were revoked because he committed an unsafe act which was “an automatic response.” He noted that Complainant did not disagree with the Manager’s decision. The Acting Manager stated that she informed the Manager. In-Plant Support to allow Complainant work at the facility “but not allowed to drive a postal vehicle.” 4 2019005975 Regarding claim 3, Complainant alleged that on May 5, 2018, he was issued a 14-Day Suspension dated May 1, 2018. The AJ noted that manager was the deciding official to issue Complainant a 14-Day Suspension for Failure to Observe Safety Rules and Regulations. The Acting Manager stated that on April 20, 2018, the Acting Customer Service Analyst observed Complainant outside of the facility while leaving the vehicle engine running. She stated that on April 24, 2018, she conducted a Pre-Disciplinary Interview with Complainant in the presence of his union steward in which Complainant acknowledged being aware of the rules regarding leaving a vehicle engine running and leaving a vehicle unsecured. In addition, the Acting Manager noted that Complainant stated that he explained to the Acting Customer Analyst how he always turned his vehicle engine off and how his vehicle was not positioned “so it would roll away nor was it positioned in a dangerous manner to cause an accident. You added you have worked for the Postal Service for 37 years, been a Ramp Clerk for 8 years and have never have been cited for any safety violations.” Following the interview, the Acting Manager determined that Complainant’s failure to drive safely could have resulted in serious injuries or even fatalities. The Acting Manager further placed Complainant on notice that “this action is taken to impress on you that you must correct your work deficiencies and demonstrate to postal regulations.” Moreover, the Acting Manager stated that Complainant’s race, sex, age and prior EEO activity were not factors in her decision to issue him the 14-Day Suspension. Regarding claim 4, Complainant claimed that he has been bypassed for overtime. The AJ noted in his affidavit, Complainant felt he was bypassed for overtime because of his race, sex, and retaliation. However, Complainant identified at least one other African-American male who received overtime during the relevant period and that it “defeats his sex and race theories. Further, Complainant testified that he started being bypassed for overtime by the Acting Manager on April 24, 2018. The AJ further noted that this started well before he engaged in protected activity on June 1, 2018, and that “reprisal for his EEO activity was likely not the reason he was not selected for overtime.” Regarding claim 6, Complainant asserted that on October 23, 2018, he became aware that other employees had been trained on new vehicles four months before he was scheduled for training. The Acting Manager explained that the three employees who were selected for training on new vehicles because they were working on a different tour (Tour 2). She further stated that the training was only being offered for Tour 2 employees. Regarding claim 7, Complainant asserted that on November 7, 2018, a supervisor caused him to miss an overtime opportunity when she did not call him until 2:01 p.m. for overtime that began at 2:00 p.m. while she called another employee not on the Overtime Desired List earlier in the day. 5 2019005975 The Acting Manager asserted that on November 11, she tried calling Complainant at 9:30 a.m., 10:30 a.m. and 11:30 a.m. about working overtime, without success. She stated that she also texted Complainant at 11:00 a.m. and received a message that “his mailbox was full and I could not leave a message.” Regarding claim 8, Complainant claimed that on November 7, 2018, he became aware that a co- worker was allowed to work overtime on his day off while he was not given the same opportunity. The AJ noted that the Acting Manager stated that Complainant’s was not selected for overtime because the Matheson facility “where help was needed was not open on Complainant’s scheduled day off (Monday), and therefore the overtime opportunity was not available to him.” The Acting Manager also noted that overtime “is called according to the needs of the service.” To prove his harassment claim, Complainant must establish that she 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. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex, age and/or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. After careful consideration of all Complainant’s claims and the evidence of record, there is adequate support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, sex, age and/or prior EEO activity. A case of discriminatory hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination 6 2019005975 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. 7 2019005975 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 August 12, 2020 Date