[Redacted], Harry E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 12, 2021Appeal No. 2020001303 (E.E.O.C. Jul. 12, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harry E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001303 Hearing No. 410-2018-00349X Agency No. 1K-302-0050-17 DECISION On October 28, 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 September 25, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to discrimination based on race, color, national origin, and retaliation for prior protected EEO activity. 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. 2020001303 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator, P-SCH-3-08 at the Agency’s Crown Road Processing and Distribution Center in Atlanta, Georgia. On August 9, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (Caucasian European), color (White), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on April 16, 2017, management failed to properly handle Complainant being assaulted by a coworker (C1, African American); and 2. since September 2017, on date(s) to be provided, Complainant's supervisor has ordered the Dock Expeditor and Mailhandlers not to load Complainant’s trailer and to leave the mail behind near the entrance to the trailer for Complainant to load. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case cancelled Complainant’s request because Complainant’s response to a September 6, 2019, Show Cause Order (SCO) failed to show that there were material issues of fact that needed adjudication. Notwithstanding, the AJ issued a decision without a hearing on September 23, 2019. Following is a summary of pertinent facts as stated in the AJ’s decision and based on evidence in the ROI: As to claim 1, Complainant indicated that the route that he worked was awarded to him by bidding under the collective bargaining process. He also indicated that specific trucks were assigned to specific routes. Therefore, Complainant indicated, he used a particular truck on a regular basis, and he placed his bid in part based on his understanding of what truck he would receive on the route. On April 16, 2017, Complainant alleged that the Agency assigned the truck that Complainant would normally drive to C1 because C1’s normal truck was assigned to another coworker on the prior shift whose shift overlapped with that of C1. Therefore, Complainant indicated, the Agency assigned Complainant a rental vehicle to deliver his route and management told Complainant that management would secure his preferred truck for Complainant later in the shift. Complainant indicated that he saw his preferred truck parked on the loading dock. As he approached it, he saw that it was occupied by C1. This, Complainant alleged, led to an altercation. Complainant stated that C1 was sleeping when Complainant approached the cab and C1 became perturbed when Complainant approached him. Complainant conceded that he uttered profanities at C1 and indicated that C1 did the same. C1 stated that he was on his lunch hour but denied that he was sleeping. 2020001303 3 C1 agreed that his conversation with Complainant became contentious. C1 claimed that Complainant ended the conversation by uttering a racial slur at C1. This led to subsequent discussion between Complainant and C1 in an office. A Vehicle Clerk (VC) who was serving as Acting Supervisor stated that Complainant approached him in an agitated state cursing and complaining about C1. Complainant stated that VC tried to defer to another coworker (C2) with respect to the handling of this incident, but C2 told VC that C2 was staying out of it. C1 thereafter entered the room and, using profanity, stated that Complainant could not talk to him the way that he had. Complainant stated that C1 chest- bumped him three times and then threw a punch that was mostly deflected by a third coworker (C3) but did graze Complainant’s face. C1 claimed that Complainant chest-bumped him twice. VC claimed that Complainant pointed his finger in C1’s face and the two chest-bumped. C3 stated that C1 placed his finger in Complainant’s face; and Complainant responded by chest-bumping C1. Complainant stated that he asked VC twice to call the police. He stated that VC responded the first time by stating that he would call the Manager, Distribution Operations (MDO1); and that Complainant and C1 would both be fired. When Complainant responded that he had not thrown a punch, VC noted that Complainant could be fired for yelling and using profanity. Complainant stated that VC responded the second time by stating that it was up to Complainant whether VC would call management, but Complainant would be fired if he did. VC denied having threatened to fire Complainant but conceded that he told both Complainant and C1 that they would each be sent home if VC informed upper management. MDO1 affirmed that he was in fact informed and he told another MDO (MDO2). The Agency assigned the Transportation Manager (TM) to investigate the incident. TM stated that MDO2 told her to investigate the incident on April 20, 2017, while she was on leave. TM began the investigation on April 24, 2017, when she returned from leave. TM stated that both Complainant and C1 were issued discipline in the form of removals following her investigation. TM explained that it is common for employees to be placed in Emergency Off Duty Status following an altercation. TM described an incident between two other employees who were both African American. The employees were immediately placed in off-duty status prior to the time that the Agency investigated the dispute and assessed blame. TM also stated that it was the supervisor’s responsibility to see to it that the truck was reassigned, and Complainant conceded that he knew that he should not have approached C1 directly. Regarding claim 2, the Acting Supervisor Distribution Operations (ASDO) explained that the Mailhandlers have the primary responsibility for loading the trailers. She added that the drivers are contractually obligated to assist, and the Expeditors are not. ASDO stated that the job description specifically stated that the Trailer Truck Operator or driver is supposed to “load and unload mail.” 2020001303 4 She noted that the Expeditor’s job description does not contain such language. ASDO asserted that the Agency reduced the number of Mailhandlers on Complainant’s shift from fifteen to nine, and there was only one Mailhandler assigned to Complainant’s dock after that. She explained that the Mailhandler is typically overworked, and the level of assistance required from the drivers will vary from time to time. Moreover, ASDO asserted, the loading of the trucks is affected by the flow of traffic, level of clutter, and obstructions. ASDO stated that when Complainant complained to her about the level of assistance that he received, ASDO raised the issue in a meeting. ASDO reported that the other employees complained that Complainant would go straight to management with complaints about the level of assistance he received without giving them the chance to fix the problem. ASDO stated that one of the Expeditors complained that Complainant would stand idle when the Expeditor helped load the truck. ASDO also stated that the other drivers are required to help load their trucks on occasion and that she ended up helping Complainant load his truck on the night that he complained. With respect to claim 1, the AJ found that Complainant failed to show any reason to infer that he was subjected to discrimination. With respect to claim 2, the AJ stated that Complainant’s assertion that he should never have been expected to load his truck is lacking in factual support. As such, the AJ concluded that Complainant failed to indicate that he was subjected to discrimination with respect to claim 2. Regarding Complainant’s allegation that he was subjected to a hostile work environment, the AJ stated that the acts that Complainant cited to support his claim were the same type of petty annoyances and unpleasant interactions with imperfect supervisors that have been found insufficient to support a claim of hostile work environment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Statement, Complainant contests the AJ’s decision and the Agency’s final order adopting it. In its Appeal Opposition, the Agency indicates that Complainant described no facts to establish a prima facie case of discrimination; that it has articulated a legitimate, non-discriminatory reason for its actions; and that Complainant failed to show that the articulated reason is pretextual. The Agency requests that the Commission affirm the AJ’s decision and its final order. 2020001303 5 STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. ANALYSIS AND FINDINGS AJ’s Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 2020001303 6 Here, Complainant simply contested the AJ’s summary judgment decision, referring to the decision and the Agency’s final order as basis. As such, we find that the appropriately issued a decision without a hearing. Disparate Treatment After a careful review of the record in the instant complaint, we find that the AJ correctly concluded that Complainant was not subjected to discrimination on the bases of his race, national origin, color or in reprisal for his prior EEO activity of which management was unaware. The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). When a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Assuming Complainant had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. Specifically, as to claim 1, TM stated that Complainant’s altercation with C1 was investigated; that the investigation showed that Complainant and C1 were at fault; and that both Complainant and C1 were issued discipline. Regarding claim 2, ASDO explained that a reduction in Mailhandlers meant that only one such employee was assigned to Complainant’s shift. ASDO also indicated that in such situations, the driver’s job description specifically stated that the driver, like Complainant, is supposed to “load and unload mail.” Moreover, management indicated that they helped load Complainant’s truck when he complained. Complainant disagreed with management’s explanations. However, he failed to substantiate his disagreements with any evidence or to show that the alleged actions were due to his protected classes. Notably, Complainant alleged that he received less favorable treatment than his black coworkers. He however failed to identify any black comparators who received more favorable treatment than he under similar circumstances. 2020001303 7 The record indicates that both Complainant and C1 received equal discipline following their altercation alleged in claim 1. In addition, TM explained that the same discipline had been issued to two black employees under similar circumstances. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. Harassment With respect to Complainant’s harassment allegations, it is settled that hostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile environment harassment unless there exists some linkage between the hostile behavior and the Complainant's membership in at least one of his protected classes. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Where, as in the instant complaint, it is found that the Complainant fails to show pretext in connection with one or more incidents analyzed as separately actionable claims of discrimination under the disparate treatment theory, it follows that he fails to link these incidents to membership in his protected classes for purposes of his harassment claim. Staples v. Dep't of Veterans Affairs, EEOC Appeal No. 0120091013 (Jun. 22, 2010); Oakley, supra. Therefore, Complainant’s allegations fail, and his requested relief is not granted. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order adopting it. 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). 2020001303 8 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. 2020001303 9 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 12, 2021 Date Copy with citationCopy as parenthetical citation