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

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2022001912 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mike T.1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001912 Agency No. 4B-150-0010-21 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 January 21, 2022, 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 City Carrier, 01/B, at the Agency’s Pittsburgh Post Office - Grant Station in Pittsburgh, Pennsylvania. On June 21, 2021, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American), sex (male), and color (Black) when: 1. On March 2, 2021, a supervisor yelled at Complainant on the workroom floor; 2. On or around March 2, 2021, Complainant was given an investigative interview; 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 2022001912 3. On or around March 9, 2021, Complainant was charged Absent Without Leave (AWOL); 4. On April 28, 2021, Complainant was charged Leave Without Pay (LWOP); and 5. On May 19, 2021, Complainant was placed on Emergency Placement (EP). Complainant alleged that his immediate supervisor (Supervisor) created unpleasant working conditions that caused his blood pleasure to rise when on March 1, 2021, Supervisor yelled at him while he was working on the workroom floor. Complainant said he turned around and told Supervisor she did not have to yell his name out loud. Supervisor stated that she was giving a service talk and had asked everyone to stop and pay attention. However, she had to ask Complainant to stop working and turn around as he was the only employee who ignored her request. Complainant responded by saying “Don’t yell” and then walked off the workroom floor. A City Carrier who was present for the incident said Supervisor was frustrated but did not belittle Complainant. Additionally, the City Carrier believed Complainant’s reaction was out of line. On March 3, 2021, Complainant was given a pre-disciplinary interview for failure to follow instructions from supervisors when he continued to case his delivery point sequenced (DPS) mail after being instructed not to several times. Complainant was charged LWOP on March 9, 2021, and AWOL on March 10, 2021, when he called in and said he would be absent for two days. Complainant believed he did not have to call in the next day because he called in saying he would be absent for two days. Supervisor stated that she told Complainant he needed to call in the next day if he was still not feeling well and that Complainant hung up the phone before she could ask what type of leave he was requesting. Supervisor said Complainant did not call in on March 10, 2021, failed to request leave, and never submitted a leave form when he returned to work. Supervisor said in accordance with applicable Agency policies, an employee needed to submit a leave request form if they wanted to be paid for leave. Complainant was charged LWOP for his absence on April 28, 2021. Complainant averred he submitted a request for COVID-19 Emergency Federal Employee Leave (EFEL) leave on April 20, 2021, for April 28 and 30, 2021, to Supervisor. Supervisor denied receiving a leave request form from Complainant requesting COVID-19 EFEL leave for April 28, 2021. Supervisor asserted Complainant failed to request a specific type of leave. Rather, Complainant called in to say he would be absent but hung up before she could ask any clarifying questions. She informed Complainant that the Agency needed documentation and that she left a leave request form in his case, which he never submitted. On May 19, 2021, Complainant was placed on Emergency Placement (EP) for actions on May 19 that may represent theft of time and wages. Complainant alleged he was placed on Emergency Placement because he was eating lunch with another coworker outside of his area. 3 2022001912 The EP stated the reason was because Complainant’s scanner was off; however, Complainant stated that his scanner was in his satchel, and he did not know it was logged off. Another supervisor at the Grant Station (Supervisor-2) stated that the tracking scanner in Complainant’s vehicle showed he was off his route, out of his zip code, and logged off his scanner. The Manager at Grant Station (Manager) and Supervisor-2 both stated there were prior instances where Complainant could not be found on his route or in their associated program, suggesting Complainant was turning off his scanner so that his location would not be detected. Prior to Complainant being put on EP, Manager averred she notified Complainant this conduct was unacceptable. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency determined that Complainant was not 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 EEO MD-110, 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the Commission finds that the Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. 4 2022001912 As described above, Complainant was given an investigative interview after he twice failed to follow instructions regarding casing his DPS mail. With respect to the AWOL charge, Complainant failed to call in on March 10, 2021, and failed to submit a leave request form when he returned to work in accordance with the Agency’s policies. Additionally, Supervisor asserted she never received Complainant’s leave request form requesting COVID-19 EFEL leave for April 28, 2021. Next, Agency officials explained that Complainant was placed on EP for actions on May 19, 2021, that appeared to represent theft of time and wages and for which he had previously been counseled. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. Aside from Complainant’s conclusory allegations, Complainant has failed to offer any evidence that management’s actions were motivated by discriminatory animus. Accordingly, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment 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). Further, 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). Therefore, to prove his 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. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. The Commission finds that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Even assuming the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus, as explained above. 5 2022001912 The record reflects the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). The Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION Therefore, after a careful review of the record, including arguments on appeal, and arguments and evidence not specifically discussed in this decision, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 6 2022001912 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. 7 2022001912 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 March 16, 2023 Date