[Redacted], Augustine V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2021000564 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000564 Hearing No. 480-2018-00577X Agency No. 1F-927-0081-15 DECISION On October 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 4, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On April 4, 2015, Complainant was hired as a Mail Handler at the Agency’s Anaheim, California Processing and Distribution Center (P&DC), with the probationary period concluding on July 3, 2015. Before his conversion as a full-time Mail Handler in April 2015, Complainant worked for the Agency as a Mail Handler Assistant (MAH) at the same location. 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. 2 2021000564 On August 24, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (Asian), national origin (American/Hawaiian/Pacific Islander), sex (male), color (brown), and age2 when he was terminated from his Mail Handler position. After the investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ conducted a video-teleconference (“VTC”) hearing on July 27, 2020. All parties and witnesses appeared remotely via VTC. Following the hearing, the AJ issued a decision finding no discrimination. On November 4, 2020, the Agency issued the instant final action, adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination - that a prohibited consideration was a factor in the adverse employment action. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2 At the time of the events at issue, Complainant was not over 40 years old, and therefore, in accordance with the ADEA, was not eligible to bring a discrimination claim based on age. As a result, age as a basis will not be discussed herein. 3 2021000564 Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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, as here, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In her decision, the AJ determined that, during the investigation at the hearing, responsible management officials articulated legitimate, non-discriminatory reasons for the disputed action. Complainant’s first-level supervisor was the Supervisor, Distribution Operations while the Manager, Distribution Operations was his second-level supervisor. The adverse employment action in this matter was comprised of the Letter of Termination issued by management on June 29, 2015. Complainant claimed that he was treated differently because similarly situated employees were not evaluated in the same manner and not terminated for the same reasons. In the June 29, 2015 Letter of Termination, Agency management determined that Complainant was terminated for three reasons. identified as follows: (1) failure to pass probation; (2) failure to maintain regular attendance; and (3) failure to follow instructions. Regarding failure to pass probation, Agency management notified Complainant on May 4, 2015, that his 30-day evaluation was satisfactory on all elements except for “Work Quantity” and “Dependability,” for which he was given unsatisfactory ratings of “U.” The record reflects that “Work Quantity” was based on whether an employee worked at sufficient speed to keep up with the amount of work requested by the position and “Dependability” ratings was based on attendance. On June 3, 2015, at his 60-day evaluation, Complainant was given satisfactory rating on all elements except for “Dependability, for which he received an “U.” At his 80-day evaluation on June 23, 2015, Complainant maintained his unsatisfactory rating on Dependability but also received an unsatisfactory rating on “Work Methods.” The AJ noted that the “record establishes by preponderant evidence that the unsatisfactory rating on “Work Methods” was based on Complainant’s failure to follow the instructions of a named supervisor (Supervisor 2) on June 2, 2015, when he left the workroom floor early. 4 2021000564 Regarding failure to maintain a regular attendance, Complainant had three occurrences of unscheduled leave from February 23-25, 2015, from February 9-10, 2015, and from April 1-3, 2015. Because Complainant’s last unscheduled leave was immediately prior to his start as a full- time Mail Handler, management was unable to conduct an Investigative Interview on his unscheduled absences in April 2015, until his return from leave. Subsequently, at the time of the Investigative Interview, on April 13, 2015, Complainant was working his position as a full-time probationary employee. Following the Investigative Interview, on the same day, the supervisor requested discipline in the form of a Letter of Warning against Complainant for his failure to maintain regular attendance.3 Regarding failure to follow instructions, the record reflects that Complainant failed to follow management’s instructions to stay on the workroom floor on June 2, 2015. On that day, Complainant was at the APBS machine sweeping for outgoing parcels. Supervisor 2 instructed Complainant, along with three Mail Handlers, to remain on the floor. However, Complainant, along with the three Mail Handlers, took an additional break. Supervisor 2 informed management of the incident, and subsequently, the supervisor notified the Manager of Distribution Operations of her intent to charge Complainant and three Mail Handlers Absence Without Official Leave for taking an extra break. Following this incident, Complainant was terminated. The AJ noted that all four employees who took the additional break were terminated during their probationary period. Of these four employees, including Complainant, two were outside of Complainant’s protected categories, and one shared Complainant’s characteristics. During her testimony, the Manager, Distribution Operations (Pacific Islander/Samoan, brown, male, over 40) stated that Complainant was terminated “because he failed to pass probation due to unauthorized break.” He also stated that Complainant was “irregular in attendance” and failed to follow instructions. The Manager averred that if misconduct occurred during an employee’s Mail Handler term, discipline can still be issued even though the employee converted to a Mail Handler. He also noted that Agency management can consider an employee’s past discipline when making the decision to terminate an employee during a probationary period. Complainant argued that he was treated differently from the comparative employees. Specifically, Complainant stated that a named comparative (Asian, brown, male) (Comparative employee 1) testified that during the relevant period he was authorized emergency unscheduled leave to care for his daughter located out of the country. He was not disciplined for his leave because it was approved in advance of the leave and because he requested emergency leave. In addition, Comparative employee 1 had no other documented discipline in his personnel file nor was he charged with failing to follow instructions or leaving the workroom floor without prior to supervisor’s authorization. 3 The Letter of Warning is not an accepted claim in the instant case. 5 2021000564 The AJ noted that the second comparative employee (Asian, brown, male) (Comparator employee 2) who had unscheduled absence in January 2015 prior to his probationary full-time appointment as a Mail Handler in April 2015 but was not disciplined for his regular attendance and “based on this data, the evidence indicates that Complainant’s protected categories were not motivating factors behind the Agency’s actions.” A third comparative employee (Caucasian, white, female) (Comparative employee 3) testified that she was separated during her probationary period for two unscheduled absences. She stated that following her termination, she contacted the Manager and wrote him a letter regarding her termination, and later, through a negotiated settlement process, was reinstated into her former position and “because it is clear from the record that [Comparator employee 3] was initially terminated for failing to maintain regular attendance, this comparative evidence does not support the claim.” Further, the AJ determined that Complainant’s unscheduled absences “were but a part of the Agency’s decision to terminate Complainant. Management testified that Complainant’s conduct on the workroom floor in June, factored into its decision. A review of the timeline in this matter reveals that management did not move to terminate Complainant until after the workroom floor incident on June 2, 2015. There is credible evidence to suggest that this incident was the impetus for Complainant’s termination. (emphasis added)” In his appeal, Complainant claimed that the AJ failed to explain “why she gave credence to management’s assertion of facts, over that of Complainant’s testimony at hearing. In her “Discussion” section of her Decision, the AJ opined that, “[b]ecause the Agency has articulated a legitimate, nondiscriminatory reason for the adverse employment action, this discussion will move to the third step of the McDonnell analysis, the ultimate issue of whether Complainant has shown by a preponderance of evidence that the Agency’s actions were motivated by discrimination.” In addition, Complainant argued that the performance ratings he was given during his 30, 60 and 80-day evaluations “were inconsistent with the facts. He never had an unscheduled absence during his probationary period, improving his attendance over his MHA appointment. He received an “unsatisfactory” on each evaluation related to attendance, despite evidence to the contrary.” Finally, Complainant claimed he has demonstrated that the AJ’s characterization of the facts is inconsistent with the record, leading to erroneous conclusions. Complainant asserted that with regard to the evidence that was available, the AJ failed to properly weight its probative value, or explain why she credited one piece of evidence over another. We determine, however, Complainant has failed to establish the AJ erred in concluding after a hearing that the evidence did not support his discrimination claims. We find that the AJ’s decision is well-reasoned, and the assessment that the Agency provided legitimate, non- discriminatory reasons for its actions which were not proven to be a pretext to mask discrimination is abundantly supported by substantial evidence in the record, as referenced above. 6 2021000564 CONCLUSION We AFFIRM the Agency's final action because the Administrative Judge’s ultimate finding, that unlawful employment discrimination was not proven, is supported by substantial evidence of record. 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 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. 7 2021000564 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 March 2, 2021 Date