Marvin D.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Nov 3, 2020

2020000441 (E.E.O.C. Nov. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvin D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000441 Hearing No. 531-2019-00187X Agency No. 4K-210-0072-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 22, 2019, 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. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against him based on his sex or in reprisal for protected EEO activity when it placed him off the clock pending a Threat Assessment investigation. 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. 2020000441 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant at the Agency’s Frostburg Post Office in Frostburg, Maryland. On or about March 14, 2018, a Rural Carrier Assistant (RCA), who was Complainant’s wife at the time, reported that on March 11, 2018, Complainant approached her while she was loading her vehicle and stated that he needed to speak to her. RCA responded that she did not have time and got into her vehicle. RCA stated that Complainant stood in the door, would not move, and held her up for 20-30 minutes. Report of Investigation (ROI) at 132. Complainant stated that on March 11, 2018, the Postmaster of the Frostburg Post Office (PMF) (female) removed him from the schedule, without providing a reason or written justification. Complainant stated that PMF informed him that the Postmaster of the Cumberland Post Office (PMC) (male) would handle the “investigation,” and that Complainant would not be allowed to work at another facility. ROI at 70-1. On March 16, 2018, PMC interviewed both parties. RCA informed PMC that Complainant previously approached her at work and that this was an ongoing issue, for approximately one year. Complainant denied being close to RCA’s vehicle. ROI at 127,129-30. On March 26, 2018, the Agency conducted a management inquiry into RCA’s allegation that Complainant harassed her (“Threat Assessment”). The Agency noted that RCA had a standing order of protection against Complainant, which limited him to only discussing work-related matters with RCA while they are at work. The investigators interviewed Complainant, RCA, and six witnesses, and they concluded that this was a domestic issue that had spilled over into the workplace. ROI at 152-69. On April 27, 2018, the Dispute Resolution Team issued a decision to resolve Complainant’s grievance, finding a violation of the National Agreement. Specifically, Complainant was placed in a non-scheduled status without any written or advance notification. The Agency was ordered to pay Complainant’s wages for March 17, 2018, though April 27, 2018. ROI at 171-3. EEO Complaint On May 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his sex (male) and in reprisal for prior protected EEO activity when: 1. on March 11, 2018, Complainant was placed off the clock pending a Threat Assessment investigation; 2. on March 26, 2018, during a Threat Assessment meeting, Complainant was treated in a disrespectful manner; and 3. on March 26, 2018, Complainant’s request for a union steward was denied. 2020000441 3 The Agency accepted claim 1 for investigation, but it dismissed claims 2 and 3 for failure to state a claim.2 ROI at 49-54. Complainant requested an explanation for the procedural dismissal of his claims and the Agency responded to inform him that the claims were properly dismissed pursuant to 29 C.F.R. § 1614.107. The Agency also informed Complainant that he could raise his objections with an Administrative Judge (AJ), if he requested a hearing. ROI at 46-7. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 5, 2019, motion for a decision without a hearing and issued a decision without a hearing on August 19, 2019. The AJ found that Complainant did not establish a prima facie case of sex discrimination. The AJ determined that while Complainant was in a protected class and suffered an adverse employment action, he only provided a speculative claim of sex discrimination when he stated that management “automatically chose the side of the female without any proof.” In addition, the AJ found that the Agency had a legitimate reason to remove Complainant from the schedule, pending an investigation, to ensure workplace safety. The AJ also found that Complainant did not establish a prima facie case of retaliation because he claimed that he was being retaliated against by RCA, who made a false claim, and that Complainant did not allege that the Agency retaliated against him for protected EEO activity. The AJ concluded that when considering the record in the light most favorable to Complainant, he did not establish that the Agency unlawfully discriminated against him based on his sex or in reprisal for protected EEO activity. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and filed a brief in support of his motion. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s contentions Through his attorney, Complainant argues that he was removed from his full-time position, lost seniority, and was involuntarily placed in a new work location. Complainant notes that while he received lost wages from his grievance, he was not made whole for the other damages. 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s procedural dismissals of claims 2 and 3; as such, we will not address these claims in the instant decision. 2020000441 4 Complainant states that the Agency disciplined him for the “sole” reason that he is male, and when he did not “give in to the demands” of his supervisors, he was retaliated against when he was placed on an off-work status and involuntarily moved to the Cumberland Post Office, which stripped him of his seniority. Complainant argues that there are genuine issues of material fact and that he suffered from discrimination as alleged. Agency’s contentions The Agency states that Complainant did not present any genuine issues of material fact and no legal arguments to support his appeal. The Agency asserts that Complainant did not establish a prima facie case of discrimination because he did not show that his sex had anything to do with the adverse action, and that Complainant made no claim that the Agency retaliated against him for prior EEO activity. The Agency argues that it had a legitimate, nondiscriminatory reason for taking action, pending an investigation into RCA’s harassment allegation. The Agency asserts that Complainant violated the protective order, and that initially both Complainant and RCA were taken off the schedule. The Threat Assessment team determined that management officials saw a risk of a major blowup that could affect the safety of RCA, other coworkers, and Complainant. The Agency notes that following the investigation, it was determined that Complainant was unable to continue working at Frostburg and he was transferred to Cumberland. The Agency requests that the Commission sustain the AJ’s decision finding that Complainant did not establish that the Agency discriminated against him based on his sex or in reprisal. ANALYSIS AND FINDINGS Standard of Review 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). 2020000441 5 Decision without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant only makes a general assertion that there was a genuine issue of material facts, but he did not identify any facts in dispute on appeal. A review of the record shows that there are no material facts in dispute. As such, we find that the AJ properly issued a decision without a hearing. Additional claims On appeal, Complainant argues that in addition to being removed from his full-time position, he lost seniority and was involuntarily placed in a new work location, and that while he received lost wages from his grievance, he was not made whole for the other damages. However, we note that Complainant’s claims regarding a loss of seniority or involuntary reassignment are not accepted claims in the instant complaint. A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. See 29 C.F.R. § 1614.106(d). In this case, we note that Complainant raised arguments regarding a loss of seniority and involuntary transfer in his opposition to the Agency’s Motion for a Decision Without a Hearing; however, there is no 2020000441 6 indication that Complainant filed a motion to amend his complaint to include these claims,3 and the AJ did not address them in his decision. As such, we will not address Complainant’s allegations that he suffered a loss of seniority and an involuntary transfer. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his sex and in reprisal for protected EEO activity, we find that the Agency proffered legitimate nondiscriminatory reasons for its action. PMF stated that PMC told her to keep Complainant off the clock pending an investigation, after a “threat” was reported. ROI at 87. PMC stated that he made his recommendation following an initial interview with Complainant and RCA. PMC added that the findings of the Threat Assessment resulted in the Agency determining that Complainant could not continue to work at Frostburg and he was offered an opportunity to work at Cumberland. ROI at 97. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 3 We note that the AJ advised Complainant of his right to move to amend his complaint to add like or related claims in the Acknowledgment and Order for Initial Status Conference, issued on March 22, 2019. 2020000441 7 On appeal, Complainant states that the Agency disciplined him for the “sole” reason that he is male, and that he was retaliated against when he did not “give in to the demands” of his supervisors. However, Complainant only makes bare assertions and he has not shown evidence that the management officials’ reasons were unworthy of belief. Rather, we find that the record contains evidence to support the management officials’ reasons. After RCA reported the March 11th incident, management officials learned of other employees’ concerns about the situation between RCA and Complainant. The record contains handwritten statements from four employees, from mid-March 2018. For example, one witness reported that there was “a potential for violence” and a “risk of a major blow up in the office.” Additional witnesses stated that it “felt unsafe and unpredictable”; things could become “volatile”; and they were waiting for things to “explode.” ROI at 134-9. While we note that Complainant prevailed on his grievance, it was due to the Agency’s failure to follow proper procedure, and not because the reasons for placing Complainant off the schedule were false. In addition, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence that management officials were motivated by Complainant’s sex or EEO activity. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his sex or in reprisal for protected EEO activity when it placed him off the clock pending a Threat Assessment investigation. 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency discriminated against him based on his sex or in reprisal for protected EEO activity when it placed him off the clock pending a Threat Assessment investigation. 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. 2020000441 8 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. 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. 2020000441 9 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 3, 2020 Date