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

Equal Employment Opportunity Commission

Oct 19, 2020

2020000805 (E.E.O.C. Oct. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Enrique R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020000805 Hearing No. 530-2018-00045X Agency No. 1C-191-0009-17 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 September 25, 2019 final order 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Maintenance Operations Supervisor, EAS- 17 at the Agency’s Philadelphia Processing and Distribution Center in Philadelphia, Pennsylvania. On March 28, 2017, Complainant filed a formal EEO complaint claiming that the Agency subjected him to discriminatory harassment based on sex (male) and disability (service connected Post Traumatic Syndrome Disorder/PTSD, Irritable Bowel Syndrome/IBS, sleep apnea and diabetes) when: 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. 2020000805 2 1. on December 23, 2016, Complainant was drafted to work on Christmas; 2. from September 2016 through December 2016, Complainant’s clock rings were deleted; 3. in January 2016, Complainant was promised a promotion he did not receive; 4. Complainant was disciplined for missing time covered under Family Medical Leave Act (“FMLA”) leave; and 5. on December 16, 2016, Complainant was singled out for having Wounded Warrior leave. After its investigation, 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 (AJ). Complainant timely requested a hearing. On June 11, 2019, the AJ issued a Notice of Proposed Summary Judgment (“Notice”).2 After receiving a response from the Agency, the AJ issued a decision, by summary judgment, in favor of the Agency on September 24, 2019.3 On September 25, 2019, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant through counsel, that the AJ failed to address any disputed issues of material fact or the creditability issues Complainant previously raised. 2 The Notice identified the claims at issue, discussed the legal standards for issuing a summary judgment decision as well as the substantive burdens of proof Complainant needed to satisfy to prevail on claim of discriminatory harassment. The AJ then addressed each claim on the merits and determined that Complainant had not demonstrated that he had been discriminated against as alleged. 3 The AJ subsequently acknowledged in an October 2, 2019, email that he incorrectly stated in the decision that Complainant had not submitted a response to his Notice. The AJ stated that Complainant, through counsel, had timely submitted a response. However, the AJ determined that his review of Complainant’s submission did not alter his finding of no discrimination in his September 24, 2019 decision. 2020000805 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. On appeal, Complainant, through counsel, submits a statement arguing that there are material issues in dispute. However, 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. Complainant has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. 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, non-discriminatory 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, a 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. 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 2020000805 4 Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that since 2010, he has been diagnosed with PTSD, IBS, sleep apnea, and diabetes. As a result of these conditions, Complainant explained that he is unable to perform his normal duties especially when experiencing stress. Complainant also noted that the medication he takes for these conditions causes him to be disorientated at times. Complainant further noted that management was aware of his medical conditions. We presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. Our review of the record indicates that the AJ correctly determined that the Agency articulated legitimate reasons for its actions. While this analysis is not specifically discussed in the AJ’s decision, we note that the AJ incorporated by reference his June 11, 2019 Notice in the final decision which addressed the merits of the claims at issue. Claim 1 - Drafted to Work Christmas Day Complainant explained that he did not understand why his manager (“M1”) would draft him to work on Christmas Day when he did not work overtime, he could barely complete his regular schedule, and M1 already had two volunteers to work that day. Complainant further explained that he had not worked Christmas Day in the past and he believed that he was given this assignment because he had taken FMLA leave for his condition. M1 acknowledged that he was responsible to drafting Complainant to work on Christmas Day. M1 explained that he had submitted a December 19, 2016 email requesting volunteers to work over the Christmas holiday weekend and only received one volunteer. M1 noted that he needed at least three supervisors to run the multi-floor facility. To resolve this issue, M1 indicated that he created a list of supervisors ranked by the number of holidays worked that year. Complainant had worked zero holidays and was drafted first. The next supervisor had the second least number of holidays worked (a total of three holidays) but had already volunteered to work on Christmas Day. The third supervisor M1 drafted had worked four holidays that year. M1 explained that he sent out the schedule on December 22, 2016 but never received any correspondence from Complainant regarding working on Christmas Day. M1 noted that Complainant was also scheduled to work on December 22 and 23, 2016. M1 further noted that Complainant did not work on Christmas day because he called out for unscheduled leave. M1 also clarified that he used an “equitable process” of only drafting of employees when he did not have a sufficient number of supervisors who volunteer. For this reason, M1 indicated that Complainant was not drafted during 2016 because he had enough volunteers, with the exception of Christmas Day. 2020000805 5 A copy of the December 19, 2016 email from M1 to staff indicates that he requested two volunteers to work Christmas Day. The record indicates that M1 issued a staff email on December 22, 2016, listing the number of holidays the supervisors had worked in 2016. The list indicated that Complainant was the only supervisor who had worked zero holidays. The email further indicated that M1 only had one volunteer to work on Christmas Day. Time and attendance records indicate that Complainant did not report to work on December 25, 2016. Claim 2 - Deleted Clock Rings Complainant acknowledged that he was unaware of which management official was responsible for deleting his clock rings from September 2016 through December 2016. M1 denied deleting Complainant’s clock rings. M1 explained that clock ring deletions are automatically generated by the Time and Attendance Collection System (TACS). M1 explained that the TACS system would delete clock rings when some form of leave was entered for Complainant. However, M1 acknowledged that he noticed that Complainant’s auto-rings were not registering in the system and he manually entered those rings into the system for the days that Complainant was on duty. Claim 3 - Denied Promotion Complainant explained that the Plant Manager promised a promotion to the role of Manager of Operations, EAS 20 as he had served as the Acting Manager of Operations for two years. However, Complainant indicated that he was informed by the Plant Manager that he would not get the promotion. Complainant acknowledged that he was uncertain whether he applied for the management position at issue, but he had applied for nine or ten manager jobs in the past, and therefore, management was aware of his interest in the instant position. The Plant Manager indicated that Complainant had the right to apply for the position as he was eligible for the position. She denied, however, that she ever promised Complainant the manager position. The Plant Manager further indicated that she was not the selecting official for this position and she was not involved in the interview process for the position. Claim 4 - Disciplined for Missing time Covered under FMLA Complainant identified M1 as the responsible official for disciplining him for missed time. However, Complainant could not recall the dates he was disciplined for taking leaving. Complainant explained that he had FMLA leave and could take two to three days per week for two years. 2020000805 6 M1 denied disciplining Complainant for missing time under FMLA coverage. M1 clarified that Complainant was disciplined for only non-FMLA absences. M1 noted that Complainant had informed him during a pre-disciplinary interview that he has FMLA. However, M1 explained that Complainant had exhausted his FMLA leave. Complainant had FMLA from May 2015 through November 2016. Consequently, M1 indicated that Complainant was issued a Letter of Warning for failure to report as scheduled and Complainant never disputed the warning. A copy of a December 13, 2016 Letter of Warning indicates that Complainant was charged with failure to report as scheduled and the attached pre-disciplinary interview indicates that Complainant had a total of fourteen unscheduled absences in a sixty-day period. Claim 5 - Wounded Warrior Leave Inquiry Complainant asserted that the Plant Manager was responsible for singling him out when she submitted an inquiry as to whether Complainant was eligible to receive wounded warrior leave. The Plant Manager acknowledged that she sent the email about Complainant’s eligibility to receive wounded warrior leave because she was unaware of the policy. We conclude that neither during the investigation nor on appeal has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex or disability. Harassment To establish a claim of discriminatory 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his sex and disability. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s claim of discriminatory harassment in claims 1 through 5 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his sex or disability. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2020000805 7 The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 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. 2020000805 8 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 October 19, 2020 Date