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

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2022000029 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000029 Hearing No. 480-2021-00332X Agency No. 1F-914-0037-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 22, 2021 final order concerning his 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Processing Clerk assigned to its Santa Clarita Processing and Distribution Center in Santa Clarita, California. 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. 2022000029 2 On November 12, 2020, Complainant filed a formal complaint alleging discrimination based on race (African American), color (black), sex (male), and age (over 40) when he was subjected to a hostile work environment in that: 1. On September 1, 2020, and September 16, 2020, he was instructed to report to a Small Parcel and Bundle Sorter (SPBS) despite not being trained on the machine. 2. On September 9, 2020, his supervisor (S1) instructed him to report for SPBS training on October 10, 2020, stated that he would be sorry for asking to be trained, and stated that he would only be trained on sweeping the machine. 3. On September 10, 2020, S1 yelled at him, and when he told S1 that S1 was discriminating against him, S1 stated, “I like you people.” 4. On November 6, 2020, the Agency supervisors asked him to submit a request for sick leave for his absence on October 24, 2020 and charged him Leave Without Pay (LWOP) when he refused. After its investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment. Complainant did not file an opposition. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1, 2, and 3, S1 stated that in September 2020, when S1 instructed Complainant to report to the SPBS for sweeping the mail duty, he requested training for the sweeping operations. S1 stated that S1 himself, including a lead clerk and an instructor, then trained Complainant for the SPBS sweeping operations for the next several days. S1 stated that it was a normal practice for his employees, including Complainant, to perform sweeping duty on SPBS machines. On September 22, 2020, stated S1, a dozen employees, including Complainant, were assigned to the sweeping duty. S1 indicated that Complainant was not given keying training because he was not required to perform keying operation duty on the machines. S1 denied making the comment as alleged. Regarding claim 4, Complainant’s another supervisor, a Supervisor Distribution Operations (SDO), indicated that he charged Complainant with LWOP for October 24, 2020. The SDO stated that although Complainant called in to the automated system to request unscheduled sick leave for October 24, 2020, he failed to submit and sign Form 3971 (Request for or Notification of Absence) for his sick leave request when he was asked do so on October 30, 2020. S1, concurring with the SDO, stated that management was not allowed to give employees’ paid leave without their written request Form 3971. The AJ found that Complainant failed to establish that the Agency’s legitimate reasons were a pretext to mask a discriminatory motive. 2022000029 3 The AJ determined that Complainant failed to show that he was treated differently than other similarly situated employees regarding the SPBS training or leave request. The AJ further determined that even if S1 made the alleged comment in claim 3, this isolated incident was insufficient to establish a claim of harassment. The AJ concluded that the Agency did not discriminate against Complainant as alleged. The Agency issued its final order implementing the AJ’s decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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. 2022000029 4 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); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, complainant must establish that: (1) he or she belongs to a statutorily protected class: (2) he or she 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 or her 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). 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). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record reveals that Complainant, as a Mail Processing Clerk, was asked to perform sweeping operations on SPBS machines. The record also reveals that Complainant was provided with training to perform the subject duties. S1 indicated that since Complainant was not required to perform keying operations, he was not provided keying training. Regarding his LWOP, Complainant was charged LWOP for his October 24, 2020 absence because he failed to submit the required Form 3971. Upon review, we find that Complainant failed to establish that the Agency’s reasons were a mere pretext for discrimination. Further, we find that Complainant failed to show that he was treated differently than other similarly situated employees regarding the SPBS training or LWOP. Regarding his claim of harassment, considering all the events, including the supervisor’s remark, we agree with the AJ that Complainant failed to show that it was related to any protected basis of discrimination or that it was sufficiently severe or pervasive to establish a hostile work environment. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2022000029 5 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 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. 2022000029 6 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 September 21, 2022 Date