Charlie K.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

2020004253 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlie K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020004253 Hearing No. 490-2019-00199X Agency No. 4C-370-0018-19 DECISION On May 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 22, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming 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 On September 1, 2018, Complainant was hired as a Part-Time Rural Carrier Associate at the Agency’s Cleveland, Tennessee Post Office, subject to a 90-day probationary period. On March 22, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), national origin (Africa), and color (black) when, on January 22, 2019, he was issued a Letter of Separation, effective December 11, 2018. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). 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. 2020004253 2 Thereafter the Agency submitted a Motion for a Decision Without a Hearing. Complainant responded to the Motion. The AJ issued a decision by summary judgment in favor of the Agency on April 19, 2020. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie 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 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. See 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). 2020004253 3 Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the separation decision. On November 27, 2018, the Supervisor, Customer Services, Complainant’s direct supervisor (Caucasian, white, American), gave him a work performance evaluation advising him that his work performance during his probationary period has been unsatisfactory. On December 11, 2018, Complainant was sent home by the supervisor and his next communication was a Letter of Separation dated January 22, 2019, for failure to be regular in attendance, tardiness, unsatisfactory job performance, failure to follow instructions, and verbal confrontations with customers. The separation letter indicated it was effective as of December 11, 2018. At the time of his separation, Complainant had worked 67 days of his 90-day probationary period. The supervisor asserted that after 67 days he had demonstrated poor attendance, failure to follow instructions, and showed deficiencies in safety and customer service. For instance, the supervisor stated that on November 14, 2018, Complainant was one hour late because of a flat tire, he called in sick on November 17-18, 2018, and he was scheduled for additional duties on December 6, 2018, but left early and did not return phone calls made to him on that date. The supervisor further noted that on December 8 and 9, 2018, Complainant called in sick, and was 45 minutes late on December 11, 2018, due to car problems. The supervisor stated that during a driver observation conducted on November 12, 2018, Complainant was cited for multiple safety infractions including improper use of flashers and blinkers, not curbing his wheels. and rolling through a stop sign. The supervisor stated that while Complainant was working 10 hours daily 4 to 5 days per week, he continued to require approximately 4 hours of assistance daily to complete his assignments. Moreover, the supervisor opined that Complainant was not showing improvement despite counseling. In addition, the supervisor noted that Complainant engaged in a verbal confrontation with a customer. Specifically, Complainant jumped out of his Long Life Vehicle (LLV) and charged the customer, while telling him to “hit me, hit me, you are being recorded.” The supervisor also noted that Complainant directed obscene language at the customer. The supervisor stated that on December 10, 2018, around 5:30 p.m., Complainant was instructed to go to the Agency’s Ooltewah office and deliver mail, which was approximately 20 minutes away. She noted that approximately 7:03 p.m., Complainant notified management that his vehicle broke down. When the supervisor asked if the broken down vehicle was an LLV, and whether Complainant was at Ooltewah Post Office, he did not answer the question. The supervisor stated that the Ooltewah Post Office was still waiting for him to show up and that facility had to find additional help to replace him due to his failure to report. Complainant asserted that a named comparator was treated more favorably than him. The supervisor found that the comparator “was not treated more favorably. He was given job expectations 11/24/18. He started showing improvement and became faster on the route. 2020004253 4 He had no unscheduled absences and he always followed instructions. He had no confrontations with customers and he did not use obscene language with customers. He is no longer a probationary employee.” The Postmaster (Caucasian, white, American) stated that he was the concurring official concerning Complainant’s separation during his probationary period. He stated that the supervisor “expressed to me the issues she has had with this employee regarding attendance and job performance conduct. I then concurred with her decision. District HR [Human Resources] also concurred with the separation. [Manager Post Office Operations] may have also concurred or at least agreed.” The Postmaster stated that during the relevant period, Complainant had attendance/tardy problems and that he did not follow the supervisor’s instructions. The Postmaster stated that he had a conversation with another Postmaster in which he observed Complainant’s behavior was not appropriate toward his supervisor. The Postmaster stated that he later learned that Complainant had a verbal confrontation “with a customer where he threatened them. This information lead to me concurring on the decision.” Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, color, and national origin. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020004253 5 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, 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. 2020004253 6 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 November 18, 2020 Date