Royce O.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

2019003645 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Royce O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2019003645 Agency No. 4B-117-0019-18 DECISION On May 17, 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 April 18, 2019, final decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services/Distribution Associate, PS-06, at the Agency’s Post Office facility in Montauk, New York. On April 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (black, native American, white), sex (male), and color (light brown) when: 1. On or about December 12, 2017, Complainant was physically assaulted by the Postmaster (P1: White2, female); 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. 2019003645 2 2. In December of 2017, Complainant was issued a Notice of Removal, subsequently reduced to a seven-day suspension; and 3. In March 2018, when Complainant returned to work, P1 assaulted him by striking him on the chest. 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 its FAD pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Specifically, the FAD found initially that Complainant failed to establish a prima facie case of disparate treatment with regard to claim 2 because he failed to show he was treated differently. The FAD next found that, assuming Complainant established a prima facie case, the Agency articulated a legitimate, nondiscriminatory reason for its action, namely that Complainant was issued the removal notice because of poor attendance. The FAD further found that Complainant failed to establish that the Agency’s articulated reason for its action was a pretext. With regard to harassment, the FAD found that Complainant failed to show that the actions complained of were severe and/or pervasive enough to constitute harassment or that they were based on his protected bases. Finally, the FAD found that liability could not be imputed to the Agency because Agency officials acted promptly once they learned of the actions. 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”). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 We note that the record shows that P1 retired from the Agency prior to the investigation and did not cooperate with the investigation. Accordingly, her reported race, sex, and color were not provided by herself. 2019003645 3 Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action in the form of the December 14, 2017 Notice of Removal (Notice) which stated that the action was being taken based on the charge of “Failure to be Regular in Attendance/AWOL.” The Notice further stated that: A review of your attendance record indicates that since October 24, 2017 you have failed to report for duty as scheduled on seven (7) separate occasions totaling 40.89 hours of leave. In the past we have reviewed both the Postal Service rules and regulations concerning attendance and your personal attendance history. You have failed to be in compliance. In addition, another Postmaster (P2: Caucasian, male, white) averred that he issued the Notice because P1, who was in Complainant’s chain of command, was “unable” to do so, and that Complainant was “absent for a number of days before the issuance of” the Notice. The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reason was not its true reason, but was a pretext for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant averred that he disagreed with the decisions because “I used personal days that seem to be not accounted for” and that similarly situated coworkers outside of his protected bases did not receive the same discipline. Complainant identified two clerks, a white female (C1) and a white male (C2) , who he alleged were treated differently than he was. Another Postmaster (P3: White, male, white) averred that C1: 2019003645 4 Did not have attendance problems. As a matter of fact, while I was serving as the OIC in Montauk, she injured her leg, had a cast or boot on it, but was so determined to come to work, that she used a sort of tricycle-like scooter so she could get around. She really should not have even been at work but was determined to be there. Neither P2 not P3 had any knowledge about whether or not C2 had attendance problems, and as noted above, P1, who managed both C1&2, retired prior to the investigation and declined to cooperate. The record shows that C2 was issued a Letter of Warning on January 19, 2018, for Failure to be Regular in Attendance based on numerous absences between March 2017 and January 2018, for a total of just over 50 hours. While Complainant’s Notice stated that he had been absent for a total of just under 41 hours, we note that this total occurred over a much shorter time-period of just one month, while C2’s total of just over 50 hours was based on a 10-month time-period. Assuming that C2, a Clerk, was similarly situated with Complainant, a Sales, Services/Distribution Associate, we find that considering that Complainant accumulated 41 hours of unwarranted absences in just over a month, he has not shown he is similarly situated with C2 whose absences were spread out over a much longer time period. Nor has Complainant shown that Agency officials harbored any animus towards his protected bases. We therefore find that Complainant has not shown that the Agency’s articulated reason for its action is a pretext or that he was subjected to disparate treatment based on race, color, or sex. Harassment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment when he was issued the Notice of Removal, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such allegations must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such a claim is precluded based on our finding that Complainant failed to establish that the action taken by the agency was motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges that he was twice physically struck by P1, once in December 2017 and again in March 2018. In considering whether these actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an 2019003645 5 intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). The FAD found that liability could not be imputed to the Agency because it acted promptly once it learned of P1’s actions. We note the record shows that, following the December 2017 assault, P1 was issued a fourteen-day suspension, which was later reduced to a Letter of Warning following the filing of a grievance by P1. However, with regard to the second assault in March 2018, the record is unclear as to what action Agency officials took in response. Following a review of the record, while we find that the actions alleged were severe, in the end Complainant has not shown that the actions by P1 either involved or were based on his protected bases. We note in this regard that Complainant has not alleged that P1 uttered racist or sexist epithets on either occasion that she struck him, or indeed on any occasion. When asked why he believed his color was a factor, Complainant responded “I am a young black male who experienced many different acts of discrimination from [P1] who is a white female.” When asked why he believed his sex was a factor he responded, “because I was a young black man.” Such responses do not establish that P1’s actions either involved or were based on Complainant’s race, sex, or color. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the FAD. 2019003645 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019003645 7 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 6, 2020 Date