Lemuel D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 20180120171028 (E.E.O.C. Nov. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lemuel D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120171028 Hearing No. 530-2015-00318X Agency No. 1C191000815 DECISION On January 20, 2017, 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 January 3, 2017, final order 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 order. ISSUES PRESENTED Whether Complainant established that he was subjected to discrimination based on race and color when: 1) On October 3, 2014, he was sent home; and 2) On October 25, 2014, he was issued a Letter of Warning dated October 24, 2014. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency’s Philadelphia Processing and Distributing Center (P&DC) facility in Philadelphia Pennsylvania. On February 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian) and color (Yellow) 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. 0120171028 2 1. On October 3, 2014, he was sent home; and 2. On October 25, 2014, he was issued a Letter of Warning (LOW) dated October 24, 2014. Complainant has alleged that Acting Manager Distribution Operations (S1), and Supervisor Maintenance Operations (S2) intentionally discriminated against him because of his race and color when they took personnel actions against him but not against C1, a white coworker. The Agency explained that, consistent with Postal policies, Complainant was sent home and issued a LOW because he failed to follow instructions; and that his race and color were not determining factors in management’s actions. Claim 1: On October 3, 2014, Complainant was sent home. Complainant stated that S2 sent him home for failure to turn off the Induction units, and that no other management official was involved. He explained that S2 demanded that he turn the Induction units off using the High-Speed Tray Sorters (HSTS) computer. Complainant indicated that this way of turning off the machine was reserved for qualified technicians; and that he is only a mechanic. Complainant stated that to his knowledge there were no mechanical malfunctions with the Induction units. He contended that S2 directed him to not go anywhere and that he attempted to contact his Acting Manager to resolve S2’s concern, however, S2 had already contacted the Postal Police to escort him out. Complainant noted that he was unfairly and unjustly removed from the building, but that C1 had also refused to carry out the exact same instructions for which he was sent home and did not receive the same treatment. S2 stated that he did not recall a specific date, but he remembered in October 2014, that Complainant refused to follow directions. He indicated that he asked Complainant to turn off the Induction units, and Complainant refused. S2 stated that Complainant was being defiant, which was normal for him. S2 stated that he does not usually speak directly to Complainant, but there was no supervisor present and the Induction units had to be turned off immediately to get the mail through. He stated that Complainant initially ignored him, and subsequently told him he was not going to turn off the Induction units; and that Complainant did not give a reason for refusing to follow his instructions. S2 explained that when Complainant continued to refuse to follow instructions, he contacted Complainant’s supervisor, S1, and that S1 sent Complainant home via S2. The Agency affirmed S2’s statements, and noted that Complainant stated that he failed to follow S2’s instructions because he had not been trained to perform the task. However, management did not find Complainant’s reason acceptable because Complainant had been trained to turn off the units, and there was more than one way to perform the task. 0120171028 3 Claim 2: On October 25, 2014, Complainant was issued a Letter of Warning dated October 24, 2014. Complainant testified that S1 issued him the Letter of Warning on October 24, 2014, charging him with failure to follow instructions when he refused to turn off the units. He noted that the Supervisor Maintenance Operations, (S3) was initially supposed to conduct his Pre-Disciplinary Interview on October 4, 2014, but that S1 intervened. Complainant alleges that his race and color were factors in the personnel actions that management took against him because S2 had had initially instructed C1 to turn off the units; that C1 also refused but he was not sent home or disciplined. The Agency maintains that Complainant’s race or color was not a determining factor in any of its actions; and that, unlike Complainant, C1 had not been trained on shutting down the Induction units and had not ignored S2’s instructions. Rather, C1 had explained that he did not know how to turn off the Induction units. 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). Complainant timely requested a hearing. However, Complainant failed to timely submit a prehearing statement and a list of proposed witnesses for the January 6, 2017, hearing, and failed to be present for the scheduled telephonic prehearing conference on November 8, 2016. The AJ granted the Agency’s motions for sanctions and, on November 30, 2016, remanded the complaint to the Agency for the issuance of a final decision (FAD). The Agency subsequently issued the FAD finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant contends that during the AJ’s initial teleconference, he made several reasonable requests to the Agency for assistance to pursue his case, and the Agency had agreed but later reneged. Complainant adds that the Agency has instead focused on ways to have his case dropped due to untimeliness/absence rather than “legally defending their stance”. Complainant reiterates his allegations that C1 received more favorable treatment than he did; that he was not treated the same as other Maintenance Mechanics in his pay location regarding the issuance of disciplinary action or the consequences of failing to follow instructions; and that his race and color were a determining factor in the personnel actions taken against him by the Agency. 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 0120171028 4 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 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (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 burden of proving that the Agency's actions were pretextual, 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); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). Assuming, arguendo, that Complainant established a prima facie case of race and color discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this case, Complainant has alleged that management intentionally discriminated against him because of his race and color when he was sent home, and when he was issued a LOW. However, the Agency explained that, consistent with Postal policies, personnel actions were taken against Complainant because he failed to follow instructions; and that his race and color were not determining factors in management’s actions. In an effort to show pretext, Complainant asserts that he was treated less favorably than C1 because he was placed off of work for an identical infraction, and disciplined. The Agency, however, indicated that C1 was not sent home or disciplined because he responded to S2 and explained to S2 that he did not know how to turn off the Induction units. We agree with the Agency that because C1 did not engage in the same conduct as Complainant, he was not similarly situated and was, therefore, not an appropriate comparator. 0120171028 5 Complainant also stated that he did not believe he was treated the same as other Maintenance Mechanics in his pay location regarding the issuance of disciplinary action or the consequences of failing to follow instructions. However, Complainant does not identify any specific employees; and management testified that they would not know whether other Maintenance Mechanics in Complainant’s pay location failed to follow instructions at the identified points in time. We therefore find that there was no showing that the legitimate explanations given by the agency were pretext for discrimination. 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 because the preponderance of the evidence in the record does not establish that discrimination occurred. 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). 0120171028 6 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 November 8, 2018 Date Copy with citationCopy as parenthetical citation