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

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021002153 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fernando D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002153 Hearing No. 530-2020-00123X Agency No. 4C-170-0057-19 DECISION On February 16, 2021, 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 February 4, 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. 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 Rural Carrier Associate, 05/Y, at the Agency’s Post Office in Effort, Pennsylvania. On July 11, 2019 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment in reprisal for prior protected 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. 2021002153 2 1. On a date not specified in November 2018, and on February 18, 2019, management spoke unprofessionally to Complainant; 2. On February 22, 2019, Complainant was issued a Letter of Warning (LOW); 3. On June 25, 2019, the Postmaster almost forced Complainant to sign AWOL documents and scheduled him for a pre-disciplinary interview, then called it off; 4. On June 21, 2019, Complainant was notified that he had to submit medical documentation after being out sick for a single day; and 5. On June 28, 2019, the Manager, Post Office Operations called him to tell him to turn in his key. 2 Complainant alleged that the Supervisor, Customer Services (Supervisor) spoke to him unprofessionally, telling him “You think you are wise,” “You have a chip on your shoulder and you’re not going to put one over on me like you did [the previous Postmaster].” Complainant alleged he was subjected to this verbal abuse by management due to his prior grievances. On February 18, 2019, Complainant was assigned to work at the East Stroudsburg Post Office to help deliver packages. Complainant was not informed of a change in the starting time and throughout the day he had problems with the scanner’s GPS. He called Supervisor several times to report the GPS scanner malfunctioning. Complainant returned to the post office that evening without completing his assignment. Supervisor held a pre-disciplinary interview with Complainant in order to understand why Complainant could not complete his assignment. Supervisor informed Complainant the interview was a fact-finding event to determine if corrective action was warranted. Finding Complainant’s answers during the interview did not explain why he failed to complete the assignment, Supervisor issued Complainant a Letter of Warning for Unsatisfactory Job Performance on February 22, 2019. Complainant filed a formal grievance which was settled, and the Letter of Warning was expunged. On June 21, 2019, Complainant had to leave work sick when he started to experience abdominal pain. The Postmaster asked Complainant to provide medical documentation for his absence. Postmaster explained that since Complainant said he was unable to perform his job because he was sick, she needed documentation stating Complainant was fine and could return to work. On June 25, 2019, Postmaster asked Complainant to sign a PS Form 3971 (Request for or Notification of Absence) and two other documents indicating he had been Absent Without Leave (AWOL). Complainant refused to sign the documents. Postmaster explained that when there is an absence from work, a Form 3971 is printed after the absence has been put in the database. Employees are asked to sign Form 3971 to show the employee received notice. Complainant alleged Postmaster scheduled a pre-disciplinary interview, which Postmaster cancelled without informing Complainant or the reason for cancelling the interview. 2 The Agency dismissed two additional claims for failure to state a claim. Complainant raised no challenges regarding these matters and the Commission finds no reason to disturb the Agency’s dismissal decision. 2021002153 3 The Manager, Post Office Operations (Manager), asked Complainant to turn in his key to the rear entrance of the Effort Post Office on June 28, 2019, because he was out of work at the time and therefore there was no reason for him to be in the building. Postmaster explained that Complainant was spotted in the Effort Post Office parking lot at 5:30 a.m. on various occasions, and he was in the office everyday even though he was not working. Employees told Postmaster to be careful because Complainant was talking about her personal information in the parking lot. They warned her not to leave important documents in her office because Complainant would go through her office. Postmaster said she felt unsafe and contacted the Postal Inspection Service and Manager. Manager testified that Postmaster felt harassed and threatened when she learned Complainant was entering the building after hours without authorization. The Postal Inspection Service attempted to speak to the Complainant; however, Complainant refused to speak to them. Manager explained that since Complainant was not working at the time and his position did not require him to have keys for the facility, Complainant was instructed to return the keys and not enter the workroom floor portion of the facility. In its decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to reprisal as alleged. 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”). Hostile Work Environment For Complainant to prevail on his allegation of retaliation, he must show that he (1) engaged in protected activity; (2) he was subjected to a materially adverse action taken by his employer; and, (3) there is a causal connection between the protected conduct and the adverse action; and, (4) there is a basis for imputing liability to the Agency. See EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Retaliation Guidance. Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). 2021002153 4 In this case, we find that Complainant failed to show that the Agency’s actions were based on retaliatory animus. Rather, as discussed more fully above, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, Supervisor issued the LOW after Complainant’s answers during the pre-disciplinary interview did not explain why he failed to complete the assignment. Postmaster requested medical documentation to show he was cleared to return to work and requested Complainant sign Form 3971 when he returned due to his absence. Complainant was asked to return the keys to the facility after he had been observed in the building, going through Postmaster’s office, and in the parking lot after hours when he was not working. Postmaster felt harassed and unsafe by Complainant’s actions, and his position did not require him to have keys to the facility. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for reprisal. Accordingly, we find that Complainant has not shown that he was subjected to reprisal or a hostile work environment as alleged. 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. 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). 2021002153 5 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. The court has the sole discretion to grant or deny these types of requests. 2021002153 6 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 September 6, 2022 Date