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

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2021002389 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mckinley P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002389 Hearing No. 480-2017-00764X Agency No. 4F-900-0065-17 DECISION 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 5, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s facility in Santa Monica, California. On February 27, 2017, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against him on the bases of race (Mexican), sex (male), age (Year of birth: 1948), and 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. 2021002389 2 1. On November 16, 2016, Complainant was sexually harassed and assaulted by two coworkers and management failed to take appropriate action. 2. On or about March 3, 2017, and other dates, Complainant was denied opportunities to work and his schedule was changed. At the conclusion of 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew his request. Consequently, 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 discrimination as alleged. Complainant filed the instant appeal. 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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, she 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to 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, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Center v. 2021002389 3 Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order to establish a claim of harassment, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order to meet the requirements of prong 4, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) he belongs to a protected class; (2) he was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering 2021002389 4 with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Commission’s guidelines on sexual harassment provide that “unwelcome” sexual conduct constitutes sexual harassment when “submission to such conduct is made either explicitly or implicitly a term of condition of an individual’s employment.” 29 C.F.R. 1604.11(a). “In determining whether unwelcome sexual conduct rises to the level of a ‘hostile environment’ in violation of Title VII, the central inquiry is whether the conduct “unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.” EEOC Policy Guidance on Current Issues of Sexual Harassment (March 19, 1990), p. 14; 29 C.F.R. 1604.11(a)(3); see also Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993). Sexual flirtation, innuendo, or vulgar language that is merely trivial or annoying will not establish a hostile environment. EEOC Policy Guidance, supra, p. 14. The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person. Id. With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, where the harassment does not result in a tangible employment action the agency can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (2) that complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. In the case of coworker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show he was subjected to a discriminatory hostile work environment. 2021002389 5 Regarding claim 1, the record shows that on November 16, 2016, Coworker 1 (C1) pulled down Complainant’s pants at work while Coworker 2 (C2) took a photo of him. On November 18, 2016, Complainant reported the incident to management, and on the same day, C1 and C2 were put on an emergency placement in an off-duty status pending investigation; they were not allowed to reenter the workplace. C1 and C2 were both suspended and downgraded to lower positions due to the incident. They were also transferred to a different Agency facility. C1 was given a Last Chance Settlement Agreement and issued a Notice of Removal to be held in abeyance for a two-year probationary period.2 Complainant alleges management’s response was insufficient because no one came to him to ask how he felt. Management disputes this and asserts that they spoke to him in detail about the incident during the investigation. Regarding claim 2, Complainant asserts that from March 3, 2017, he was restricted to working only 8 hours a day although other employees were allowed to work more than 10 hours a day. He also alleges he was denied the opportunity to work overtime during his normal duty days and his off-duty day. He further states his start time was changed from 2:00 pm to 4:00 pm. The Agency asserts that a district office mandate cut down on overtime and required preapproval before an employee worked overtime on their off-duty day. Management further asserts that Complainant was never told that he could not work more than 8 hours a day, but Complainant was restricted from working penalty overtime, which is more than 10 hours a day. Management asserts that after March 3, 2017, Complainant consistently worked overtime. Regarding the change in Complainant’s start time, management asserts that Complainant’s start time was changed to 4:00 pm based on the facility’s operational needs. Specifically, a 4:00 pm start time was more conducive to meeting the later truck. Regarding Complainant’s sexual harassment claim, we find that once Complainant reported the incident to management, the Agency took immediate, appropriate and effective actions to stop the unwanted behavior and address Complainant’s allegations. Accordingly, there is no basis for imputing liability for sexual harassment to the Agency. Regarding Complainant’s disparate treatment claims, we find Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. Complainant has not provided any evidence other than his own opinion that management was motivated by race, sex, age, or reprisal. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In addition, 2 There is also evidence to suggest that C1 and C2 were ultimately removed from Agency employment altogether. 2021002389 6 Complainant has not shown that there were similarly situated employees not in his protected groups that were treated more favorably regarding any of the claims even if they occurred as alleged. Furthermore, 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 discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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). 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 2021002389 7 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. 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 02, 2022 Date