Clement D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 12, 2020

2019001174 (E.E.O.C. Aug. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clement D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2019001174 Agency No. 4C-370-0011-18 DECISION On October 16, 2018, 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 September 12, 2018, 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. ISSUE PRESENTED The issue presented concerns whether Complainant established that he was subjected to harassment and disparate treatment based on his race and/or prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency’s Post Office in Atoka, Tennessee. On February 16, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment bases of race (African-American) and reprisal for prior protected activity 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. 2019001174 2 under Title VII of the Civil Rights Act of 1964. In support of his claim, he alleged the following events: 1. On May 23, 2015, Complainant was issued a seven-day paper suspension. 2. In December 2016, the Postmaster struck Complainant with parcels he threw. 3. In April 2017, Complainant’s hours were reduced. 4. On April 27, 2017, Complainant was issued a Notice of 14-Day Paper Suspension. 5. Complainant was sexually harassed and when he reported it, management threatened to fire him. 6. Management conspired to have Complainant removed from the office. 7. In September 2017, Complainant was not offered a route he should have been offered. 8. On October 14, 2017, Complainant’s schedule was changed. 9. Beginning October 15, 2017, Complainant was required to provide his own vehicle to deliver mail. 10. On November 20, 2017, Complainant was issued a 14-day suspension. 11. On April 1, 2017, Complainant was demoted. 12. On various dates from December 2016, January 2017, and November 2017, Complainant was denied assistance. 13. From September 2017 to February 2018, Complainant was not permitted to work vacant routes. 14. Complainant was not paid for hours worked. A review of the record indicates the following events. Complainant asserted that he was sexually harassed in March 2015, by a coworker who sent him a nude photo by text message. Complainant reported the incident to management. The coworker informed Complainant and management that the photo was sent by mistake. The Agency investigated Complainant’s claim, however, Complainant noted that nothing was done by management. As such, Complainant was not satisfied by the Agency’s actions. Complainant further believed that his manager (Manager) and his supervisor (Supervisor) threatened to fire him for reporting the harassment. 2019001174 3 Complainant asserted that management was trying to remove him by issuing disciplinary actions. Complainant claimed that management sought to cover up their negligence for failing to properly respond to Complainant’s claim of sexual harassment. The Manager issued Complainant a seven-day paper suspension on May 23, 2015. The Manager issued the suspension for Complainant’s mis-delivery of express mail at a specific time and for failure to follow instructions. Complainant believed that management conspired against him after he reported his claim of sexual harassment. Complainant maintained that he delivered the express mail before 3:00 p.m. however, the time was inputted incorrectly because the scanner's time and date settings were incorrect. Complainant claimed that management was aware of the scanner’s setting but still charged him with mis-delivery of express mail. Subsequently, Complainant indicated that the Manager struck him with parcels when sorting parcels into a buggy. He stated that parcels were being thrown into the buggy. When the buggy became full, the Manager asked to have the buggy emptied. Complainant was removing the parcels from the buggy when the Manager hit him with a parcel that was thrown at the buggy. Complainant believed that the Manager’s action was intentional and that parcels should not have been thrown. The Manager stated that Complainant did not clear his buggy in a timely manner resulting in an overflowing tub. He asserted that packages will fall from the side of the buggy and hit Complainant. The Manager denied that Complainant was intentionally struck with the package. Complainant indicated that he was denied assistance in December 2016, January 2017, and February 2017. However, the Manager believed that Complainant was the reason for his failure to complete his route. The Manager indicated that Complainant struggled to get out in time and to complete his route despite Complainant being an experienced carrier. Complainant then indicated that, around April 1-7, 2017, his hours were reduced when the Manager created an auxiliary route. Complainant was only allowed to work the auxiliary route and he was not allowed to work other locations. Complainant noted that the auxiliary route involved less time. The Supervisor stated that when the auxiliary route was created, Complainant, as the senior carrier, chose to carry the route. When she told Complainant to work on another route, Complainant refused to do so. As such, the Supervisor claimed that it was Complainant making a choice to work only his assigned route and no other route. During this time, Complainant also claimed that assigning him to the auxiliary route was a demotion. The Manager noted that Complainant had been receiving a mileage allowance which is provided when a carrier delivers mail utilizing their own vehicle. However, at this time, Complainant was using a postal vehicle and, as such, should not have received the mileage allowance. The Agency had to seek a correction for the overpayment. The Manager denied Complainant’s assertion that he was demoted. 2019001174 4 The Manager issued Complainant a 14-day paper suspension on April 27, 2017, for failure to follow safety and rules and regulations. Complainant had a vehicle accident when he struck a stationary object; improperly left the scene of the accident; and did not immediately report the accident. Complainant indicated that, in September 2017, Rural Route 9 became vacant and the Agency failed to offer the route to him as the senior carrier. Complainant believed that the Agency should have put Rural Route 9 up for bid and filled the assignment by seniority. However, the Manager stated that Complainant was already assigned the auxiliary route. Further, the Manager noted that Rural Route 9 was not vacant and could not be offered to Complainant. The Manager averred that the regular carrier was on leave. Carriers are asked to provide their choice of three routes they wish to cover when the regular carrier is unavailable to carry their route. Complainant did not list Rural Route 9 as one of his three choices. As Complainant did not request the route, the Manager did not assign Complainant to Rural Route 9 when the regular carrier was out on leave. In October 14, 2017, Complainant’s schedule was changed. He asserted that his schedule was the only one changed. The Manager indicated that Complainant’s route was changed by one hour due to a change in needs due to peak season. During this time, Complainant was required to provide his own vehicle. The Manager indicated that Complainant was informed of the change in April 2017, however, the letter was not mailed to Complainant until October 2017. The Manager stated that the Agency provided him with a Long Life Vehicle while Complainant was trying to purchase his own vehicle. The Manager noted that from September 2017 through January 2018, there were issues with Complainant having his car or using his car to deliver mail. For example, on October 21, 2017 the Complainant arrived at work and cased his mail. Complainant then gave his mail to another carrier to complete delivery because the Complainant did not have a vehicle to make deliveries. On November 20, 2017, the Manager issued Complainant a notice of 14-day suspension for failure to provide a working vehicle to carry his route. 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). The Agency dismissed claim 8 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Then, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Manager is a manipulator who uses his position to intimidate and fire anyone he wishes to for no reason whatsoever. 2019001174 5 He claims that the Manager is known for his favorable treatment of others and discriminatory treatment of people like Complainant. In sum, Complainant argues that the Manager created a hostile work environment. The Agency asks that the Commission affirm its final decision. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. 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. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2019001174 6 In his complaint, Complainant raised claims 7, 8, 9, 10, 12, and 13 which were timely raised and which constitute separate actionable claims of disparate treatment. Therefore, we address whether the Agency has provided legitimate, nondiscriminatory reasons for these actions. We note that the Agency dismissed claim 8 pursuant to 29 C.F.R. § 1614.107(a)(1). The Supervisor indicated that Complainant’s route was changed by an hour as alleged due to a change in peak hours. As such, even if Complainant stated a claim with respect to claim 8, the Agency indicated that it did not occur because of discrimination. As to claim 9, the Supervisor averred that auxiliary routes do not qualify for use of Agency vehicles. As such, when Complainant was notified that he would begin his auxiliary route in April 2017, he was informed that he would have to provide his own vehicle to deliver the mail on that route. In addition, management stated that Complainant was paid an Equipment Maintenance Allowance for use of his own vehicle. On November 20, 2017, Complainant was issued a notice of a 14-day suspension as raised in claim 10. The Supervisor stated that Complainant was issued the notice for several infractions including failure to follow instructions, failure to provide a working vehicle to carry his route, and failure to follow the standard operating procedure. In response to Complainant’s claim 12, the Supervisor stated that he did not deny Complainant’s requests for assistance. He attested that Complainant was an experienced carrier. Despite his years in service, Complainant could not properly complete his route in time unless someone helped him. The Supervisor found that Complainant struggled to get out in time and to complete his route. Furthermore, the Supervisor stated that there were instances when he denied Complainant assistance. However, this was an issue of lack of available help, not Complainant’s race and/or prior protected activity. Finally, as to claims 7 and 13, Complainant indicated that he wanted to be assigned to Rural Route 9. The Supervisor stated that rural carriers were permitted to work vacant routes only if and when the regular carrier was off on extended leave or detail. Carriers would be assigned their route and designate their second and third choices for selection based on seniority. The route Complainant asserted was vacant was listed as Rural Route 9. The Supervisor informed Complainant that Rural Route 9 was not listed as his second or third choices. As such, the Agency was not made aware that Complainant wanted to be assigned Rural Route 9. Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Complainant merely asserted without specific proof that his race and prior protected activity were the reasons for the Supervisor’s actions. We find that Complainant’s assertions alone are not enough to establish pretext. Accordingly, we conclude that Complainant did not establish his claims of disparate treatment as alleged in claims 7, 8, 9, 10, 12, and 13. 2019001174 7 Harassment It is well-settled that harassment based on an individual’s race and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). As noted above, we found that Complainant has not established that the incidents cited in claims 7, 8, 9, 10, 12, and 13 were motivated by unlawful discrimination. In his harassment claim, in addition to the incidents discussed above, Complainant alleged claims 1, 3, 4, 11, and 14 where he asserted that he was subjected to different treatment based on his race and prior protected activity. In claims 1 and 4, the Supervisor issued the seven-day suspension for failure to deliver Express Mail by 3:00 pm and the 14-day suspension for failure to follow safety rules and regulation when he struck an object and left the scene of the accident. As to claim 3, the Supervisor denied Complainant’s assertion that his hours were reduced. The Supervisor indicated that Complainant’s route was changed by an hour as alleged in claim 8 due to a change in peak hours. As to claim 11, the Supervisor noted that Complainant had received pay for mileage and other adjustments to which he was not entitled. As such, the Agency sought to have reimbursement from Complainant of the overage paid. Accordingly, Complainant was not demoted as he asserted claim 11. Finally, as to claim 14, Complainant informed the Supervisor that he was not paid for nine hours during the peak season. The Supervisor affirmed that he mistakenly calculated his time card and corrected the situation upon notification from Complainant. Upon review of the record, we find that the Agency provided legitimate nondiscriminatory reasons for the actions alleged in claims 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, and 14. Further, Complainant has provided no evidence to show that these actions occurred based on his race and/or protected activity. Complainant also alleged additional events in claims 2, 5, and 6 in support of his claim of harassment. In claim 2, Complainant asserted that he was struck with a parcel. The Supervisor stated that a package accidently slipped off a mail hamper and hit Complainant. Complainant alleged that he reported harassment in claim 5. However, in response, he claimed management threatened to fire him. The Supervisor stated that Complainant was being disciplined for an unrelated event in December 2016. In response to the standup talk, Complainant asked the Supervisor why a coworker was not disciplined for sexually harassing him in 2015. 2019001174 8 The Supervisor argued that Complainant raised the sexual harassment and provided emails and notes establishing that the Agency conducted an inquiry into the 2015 claim of sexual harassment. In claim 6, Complainant asserted summarily that the Supervisor took disciplinary actions against him in order to remove Complainant. As indicated above, we determined that Complainant failed to demonstrate that the disciplinary actions constituted discrimination based on his race or in retaliation. With regard to Complainant's discriminatory harassment claim, he has simply provided no evidence to support a finding that his treatment was the result of his race or retaliatory animus. Furthermore, we determined that Complainant failed to show similarly situated persons were treated differently. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2019001174 9 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. 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 12, 2020 Date