[Redacted], Camie B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Feb 11, 2021

Appeal No. 2021000687 (E.E.O.C. Feb. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Camie B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000687 Hearing No. 460-2020-00612X Agency No. 1G-772-0024-20 DECISION On November 4, 2020, 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 November 17, 2020, final order concerning her 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 At the time of events giving rise to this complaint, Complainant worked as a PSE Clerk, 06, at the Agency’s North Houston Processing & Distribution Center facility in Houston, Texas. On January 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Black) when: 1. On December 3, 2019 Complainant was placed on Emergency Placement; and 2. On December 9, 2019, Complainant was issued a Notice of Removal for Unacceptable Conduct effective January 17, 2020. 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. 2021000687 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment on November 4, 2020. Specifically, the AJ found that Complainant failed to establish a prima facie case of discrimination because she failed to identify similarly situated coworkers outside of her protected bases who were treated differently. The AJ noted that Complainant was placed on Emergency placement and issued a Notice of Removal for being involved in a fight in the workplace and that the two other coworkers involved in the fight shared the same protected bases as Complainant and were treated the same way she was. The AJ further noted that even assuming Complainant established a prima facie case, the Agency articulated a legitimate, nondiscriminatory reason for its actions, namely that Complainant was involved in a physical altercation in the workplace. The AJ found that Complainant failed to show that the Agency’s articulated reason for its action was a pretext. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, Complainant has failed to point 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 her favor. 2021000687 3 Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. The Agency articulated a legitimate, nondiscriminatory reason for both the Emergency Placement and the Notice of Removal. The December 3, 2019 Emergency Placement Notice states “On 12- 3-2019 @ approximately 5:00 am, you were involved in a physical altercation on DBCS #23. Zero tolerance violation.” An email from the Manager, Distribution Operations (M: African American, female, black) addressed to various other managers and supervisors identifies Complainant and two other Agency employees being involved in an altercation: Expeditor, [________] (name omitted) called me via the shortwave radio to report to DBCS #23 because there was a physical fight on that machine. I called the Postal Police to report to DBCS #23 and I also went to the machine immediately. Upon arrival I say [sic] the three employees walking away. I stopped them and asked them to report to the General Clerk Office in the front of the building. I also called for an APWU Union Steward. . . .. The three employees were instructed to write a statement on what happened, the 16.7s [sic] were executed and investigative interviews were conducted on all three employees. The APWU representative was present for all procedures. The employees were notified that they were being placed off the clock in a no-pay status until the completion of a thorough investigation of this incident of Zero Tolerance violation. The [sic] where given a copy of the Zero Tolerance policy and a copy dated and signed by them was retained in the file. Their badge cards were collected and retained by me. The employees were asked to provide a good phone number for future communication. Postal Police escorted these employees out the building and off the premises. The expeditor, ______, told 2021000687 4 me that she saw the fight from a distance and did not see who was fighting. She said she saw them wrestling on the floor. The Notice of Removal stated that Complainant would be removed from the Agency effective January 17, 2020 based on a single charge of unacceptable conduct. The notice further stated: On December 3, 2019 at approximately 5:00 am you were involved in a verbal and physical altercation at/near DBCS # 23 which was disruptive to the work room floor. Employees stopped working to assist in stopping the fight and other employees stopped working only to observe the commotion you caused. Also, other resources, which would normally be targeted towards processing and movement of our customers’ mail had to be diverted towards investigating this incident and executing processes needed to initiate the investigation of this ZERO TOLERANCE violation caused by you. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant averred that she was acting in self defense and that the other two coworkers attacked her, but she does not deny she was engaged in the altercation. In her statement to management at the time she similarly stated that the other two coworkers initiated the confrontation, and on appeal Complainant has stated that she feared for her safety. We note, however, that such comments do not tend to show that the Agency’s articulated reason for its action is a pretext. Nor has Complainant shown that Agency officials harbored discriminatory animus towards her protected bases. Complainant on appeal alleges that one of the other two women involved in the altercation gets “special treatment” and that Complainant was “setup by management.” We note, however, that Complainant has not shown that similarly situated coworkers outside of her protected bases were treated differently than she was. The record shows that all three employees involved in the altercation received the same treatment in being placed on Emergency Placement and subsequently being removed from the Agency. Furthermore, all three employees, as well as the Responsible management officials identified by Complainant, share the same protected bases as Complainant. On appeal, we note that Complainant raises various allegations unrelated to this complaint. We therefore find that Complainant has not established that discrimination occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIRM the final order. 2021000687 5 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. 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). 2021000687 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 February 11, 2021 Date