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

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022002276 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thomas O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002276 Agency No. 4G-752-0214-21 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 February 15, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of the events at issue, Complainant was a City Carrier Assistant (CCA) at the Medrano Station in Dallas, Texas. Complainant filed a formal EEO complaint alleging that he was subjected to discrimination and harassment based on race (Black), sex (male), and age (over 40) when: 1) on March 5 and 15, 2021, and April 1 and 12, 2021, he was denied a uniform allowance; 2) from January 5 through May 13, 2021, he was not paid travel mileage; and 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. 2022002276 2 3) he was harassed by management, threatened to be given reduced hours, taken off the work schedule and terminated.2 Complainant maintained that A1 (Black, male, over 40), Acting Manager Customer Services; S1 (Black, female, over 40), Supervisor Customer Services; S2, Supervisor Customer Services;3 S3 (Black, female, over 40), Supervisor Customer Services; S4 (Black, female, under 40), Supervisor Customer Services; and A2 (Black, female, over 40), Acting Manager Customer Services, Highland Hills Station in Dallas, Texas were the officials who discriminated against him. Claim 1: Complainant stated that he has been employed since April 2020, and was denied a uniform allowance on the dates of March 5 and 15, 2021, and April 1and 12, 2021. He maintained that A1 and S1 were the responsible management officials. On the specific dates that he referenced, Complainant claimed that he inquired about the allowance, but was told that they did not have any information and would follow-up. According to Complainant, they never did. Complainant stated that he was not given a reason why the allowance was denied. It was his understanding, that a CCA became eligible for a uniform allowance upon completion of 90 workdays, or 120 calendar days of employment. Complainant believed his race, sex and age were factors, because his managers were trying to demean him, by intentionally withholding pay and his uniforms. A1 stated that CCAs did not get a uniform allowance. He maintained that only regular carriers were provided uniform allowances. CCAs, he stated, were provided an authorization letter to purchase uniforms if they were eligible. He stated that Complainant did not request a uniform allowance from him. A1 noted that C1 (Black, male, under 40) a Full-time Regular Carrier, supervised by S4, qualified for a uniform allowance because he was a regular carrier. S4 stated that Complainant did not request a uniform allowance from her during his time at the Medrano Station, and that he was not denied a uniform allowance. She explained that CCAs were authorized uniform allowance after their probationary period. She stated that, at that time, they were given a uniform allowance form to provide to the uniform vendor. A2 stated that she did not deny Complainant a uniform allowance. She explained that employees are issued a uniform allowance after an allotted time. She stated that when Complainant was transferred to the Highland Hill Station, he requested a uniform allowance, and it was given to him immediately. 2 Initially, the complaint included an additional allegation; however, on July 29, 2021, this allegation was dismissed for failure to state a claim on the grounds that Complainant was collaterally attacking a determination by the Office of Workers’ Compensation Programs. Complainant did not contest the Agency’s dismissal on appeal; therefore, this issue will not be addressed further in this decision. 3 S2 did not respond to the Investigator’s requests for an affidavit. 2022002276 3 S1 stated that she was on leave during the relevant time period and knows nothing about this claim. Claim 2: Complainant stated that, while on the clock, he was sent to another station, but he was not compensated for the travel mileage on his personal vehicle as required by Agency policies. The dates were January 5th through May 13th, 2021. He stated that A1 and S1 were responsible, and that S2 and S3 were also involved in refusing to provide him with the form for payment. Complainant stated that he was notified during new hire training that mileage would be reimbursed when he was required to travel in his personal vehicle to work at other stations. He stated that he was not provided a reason by management for not being paid travel mileage; however, he stated that S2 claimed he did not know how to process it. A1 stated that the Area Manager determined where CCAs work, and then informed the supervisor. He noted that a grievance was filed, and Complainant was ultimately paid for the mileage. According to A1, he did not know that Complainant had not been paid for the mileage until he filed the grievance. A1 noted that travel mileage was authorized and paid through the online system, Etravel, which Complainant never utilized. Claim 3: Complainant maintained that A1 and S2 made threatening comments towards him, and that he was written up by S4. Complainant stated that A1 would regularly make these statements when he questioned him about something work related. He also alleged that his hours were reduced for three days, and that he was taken off the schedule. Complainant did not identify the dates that his hours were reduced or when he was removed from the schedule. Complainant did acknowledge that he was never terminated. A1 denied threatening to reduce Complainant’s workhours, take him off the work schedule or to terminate him. He did not know which three days Complainant’s hours were allegedly reduced, and stated that, to his knowledge, Complainant was not taken off the work schedule. S4 stated that she did not threaten to reduce Complainant’s workhours, take him off the work schedule, or threaten to terminate him. She noted that Complainant had medical restrictions which allowed him to only work four hours a day. She maintained that Complainant was not taken off the work schedule. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. When Complainant did not respond, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The 2022002276 4 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination and harassment as alleged. This appeal followed. On appeal, Complainant argues that the Agency’s investigation was biased and relied on false statements by management officials. He maintains that: (1) there was a contradiction between A1’s statement and that of S4 and A2 with respect to his entitlement to a uniform allowance; (2) the Investigator should have compared the Agency’s written policies and his time cards to confirm if A1 provided truthful testimony about his being reimbursed for mileage; and (3) due to fear of retaliation witnesses, including management officials such as S2, were unwilling to support his allegations of harassment.4 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”). At the outset, we find no persuasive evidence to support Complainant’s assertion on appeal that the Agency’s investigation was biased. We further find that the investigative file contains sufficient information upon which to determine whether or not the Agency actions were the result of an unlawful discriminatory motive. The requirement that an agency investigate complaints of discrimination is codified at 29 C.F.R. § 1614.108. This regulation requires the agency to develop an impartial and appropriate factual record upon which to make findings on the claim or claims raised in the complaint. Id. § 1614.108(a). “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” Id. Complainant, we further note, was given the opportunity to request a hearing with an EEOC Administrative Judge but failed to make that request. The hearing process would have afforded him the opportunity to conduct discovery and to cure the alleged defects in the record that he believes exist. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas 4 According to Complainant, S2 told him that management would retaliate against supervisors if they got involved and that he, S2, needed his job. 2022002276 5 Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Claims 1 and 2: Assuming, arguendo, Complainant established a prima facie case of race, sex, and age discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions set forth in claims 1, and 2, and we find no persuasive evidence of pretext. Complainant provided no evidence that his race, sex, or age played any role in these matters. His claim that his race, sex, and age were factors, because his managers were trying to demean him, by intentionally withholding pay and his uniforms - lacks any evidentiary support given that all the named management officials are, like Complainant, Black. With respect to Complainant’s first contention on appeal, we do not find that the slight discrepancies between A1, S4, and A2’s statements are indicative of pretext. Complainant believed that he was entitled to a uniform allowance. A1, however, maintained that CCAs are not entitled to uniform allowances, but are provided authorization letters that allow them to purchase uniforms if they were eligible. Although she used the term, uniform allowance, S4 confirmed that CCAs are given a form to provide to the uniform vendor. Both A1 and S4 agree that Complainant never requested a uniform allowance, of any sort, from them, and Complainant offered no evidence to contradict them. Complainant also relied on A2’s statement that employees are issued a uniform allowance after an allotted time, and that Complainant was provided with one after he transferred to the Highland Hill Station. We also do not find this to be indicative of pretext because A1 was not in control of the operations at the Highland Hill Station, and, according to A2, Complainant made a request for a uniform allowance at her facility. We further find that even if Complainant, for the sake of argument, established that A1’s interpretation of Agency policy was wrong, this does not establish pretext. 2022002276 6 Pretext analysis is not concerned with whether the actions were unfair or erroneous but whether the actions were motivated by discrimination. Gregg B. v. Dep’t of the Army, EEOC Appeal No. 0120151783 (June 7, 2017); Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). Regarding Complainant’s second contention on appeal, it is not clear exactly what Complainant is asserting here. The record contains a copy of a grievance settlement indicating that the Union and the Agency resolved Complainant’s allegation that he was not reimbursed for mileage. The Agency agreed to pay Complainant $110 on April 29, 2021. To the extent, Complainant is alleging that the Agency failed to comply with the settlement, that is outside our purview in this decision. As to the issue of pretext, A1 stated that he did not know Complainant had not been paid for his mileage until he filed a grievance, and that Complainant did not utilize the online Etravel system to request reimbursement. Complainant did not establish that these assertions were not true. Harassment In order to establish a claim of hostile-environment harassment, 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). At the outset, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with respect to claims 1 and 2. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Harris Guidance). A finding of a hostile work environment is precluded by our determination above that Complainant failed to establish that these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to claim 3, we find that even if these matters were accurately described by Complainant, and that A1, S2, S4 and others made the comments attributable to them, there is no persuasive evidence that any of this conduct was based on his race, sex, or age, nor do we find that these comments were severe or pervasive enough to establish a hostile work environment. See Harris Guidance. According to Complainant, A1’s comments arose during work-related discussions. 2022002276 7 The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. The discrimination statutes are not civility codes and are not designed to shield employees from a myriad of petty slights, disagreements, and annoyances. See Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005). Not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19. 2009). Finally, we find no support for Complainant’s assertion that fear of reprisal tainted the investigation of his harassment claim. On their face, Complainant’s claims do not indicate that discriminatory animus played any role in these matters. As noted above, if he felt that there were witnesses whose testimony would have supported his claim, he should have requested a hearing. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2022002276 8 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. 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. 2022002276 9 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 March 8, 2023 Date