[Redacted], Alvaro P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 20-2100-2421 (E.E.O.C. Apr. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvaro P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 20-2100-2421 Hearing No. 540-2018-00215X Agency No. 4E-852-0214-17 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 February 11, 2021, 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier Assistant at the Agency’s facility in Mesa, Arizona. On November 10, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) and in reprisal. By letter dated December 4, 2017, the Agency accepted the following claim for investigation: On July 10, 2017, [Complainant was] issued a Notice of Removal for failure to maintain Regular Attendance. 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. 2021002421 2 After an 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. In an Order dated October 16, 2018, the AJ dismissed the basis of reprisal reasoning that Complainant did not engage in protected activity prior to his termination. In addition, the AJ found that Complainant’s claim that he was retaliated against for calling in sick does not constitute protected EEO activity.2 Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 1, 2019, motion for a decision without a hearing and issued a decision by summary judgment on February 4, 2021. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant raises various arguments for the Agency’s final order to be reversed. Complainant asserts that he was not on probation at the time of his removal. Complainant also states that some of his absences should not be used in support of his removal for various reasons (i.e. providing medical documentation in support of an absence and not being informed of a change in start time). 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. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 2 Complainant, on appeal, does not expressly contest the AJ’s dismissal of the basis of reprisal. Thus, we decline to address this dismissal further herein. 2021002421 3 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 Corp. v. Green, 411 U.S. 792 (1973). 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. 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 Dep’t of Cmty. 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). 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ properly found that the Agency articulated a legitimate, non-discriminatory reason for Complainant’s removal. The record contains an affidavit from the Manager, Customer Service Operations (M1). Therein, M1 asserted that she issued the Notice of Removal due to attendance problems. M1 further asserted that Complainant used 41.5 hours of unscheduled leave between May 24, 2017-July 17, 2017. Report of Investigation (ROI) at 131. M1 stated that the Postmaster at Mesa accepted Complainant as a transfer to the Mesa facility as a favor for Complainant’s mother (an Agency employee). ROI at 130. M1 stated that the Postmaster contacted the union branch president and advised her that she would accept Complainant at the Mesa facility but stated Complainant would be given another 90-day probation.3 Id. The record contains a Notice of Removal, Probationary Period for Complainant dated July 17, 2017 from M1. ROI at 158. Therein, M1 stated that Complainant was being removed for failure to maintain regular attendance. Id. 3 The record contains an email from the Postmaster to M1 dated January 4, 2018. Therein, the Postmaster asserts that she was advised by management in Scottsdale that Complainant had an attendance problem. The Postmaster stated that she would accept Complainant as a transfer but with another 90-day probation. ROI at 187. 2021002421 4 The record also contains an Absence Analysis form for Complainant reflecting that he took numerous unscheduled absences after his transfer to the Mesa facility. ROI at 67. We further find that the AJ properly found that Complainant failed to establish, by a preponderance of the evidence, that the Agency’s articulated reason was pretext for discrimination. We concur with the AJ that the fact that Complainant’s managers were female is insufficient to establish pretext. We also concur with the Agency, in its Motion for a Decision Without a Hearing, that even if the information about Complainant being subject to a new probationary period upon his transfer to Mesa was not properly communicated to him, this action would not establish that Complainant’s removal was based on his protected class. Finally, while Complainant may believe that some of his absences should not have been used in his removal, we find that this belief is not sufficient to establish pretext. The record reflects, as set forth above, that Complainant had numerous unscheduled absences during his brief employment at the Mesa facility. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s Decision without a hearing finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2021002421 5 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, a 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. The court has the sole discretion to grant or deny these types of requests. 2021002421 6 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 April 19, 2021 Date