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

Equal Employment Opportunity Commission

Dec 28, 2021

Appeal No. 2020004102 (E.E.O.C. Dec. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carmelo L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004102 Agency No. 4G-330-0461-19 DECISION On July 8, 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 June 5, 2020, final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Buena Vista Carrier Annex Post Office in Miami, Florida. On August 27, 2019, Complainant’s Supervisor (Supervisor) filed a Request for Disciplinary Action (Request) in response to Complainant’s work performance. The Request stated that Complainant ignored scanner alerts for a specific location on August 26, 2019, and that he had previously been informed not to ignore scanner alerts. Complaint file at 105. 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. 2020004102 2 The Request detailed a communication between Supervisor, Complainant, and Complainant’s Representative in which Complainant allegedly stated, “I was not at that address when I got the alert and it was raining and I forgot.” The Request detailed that all Agency employees were aware of the regulations in service talks. Complaint File at 105-8. Supervisor issued a Letter of Warning to Complainant on August 27, 2019, because Complainant ignored scanner alerts. The Letter of Warning noted that Complainant had been instructed not to ignore the alerts and provided training as to the appropriate way to respond to such alerts. Id. at 63. On September 5, 2019, Complainant, via representation, filed a grievance concerning the Letter of Warning; the grievance requested Complainant’s scanner report, all missed or ignored scan reports issued within the previous 90 days, and all discipline issued to carriers for missed or ignored scans within the preceding 90 days. The Letter of Warning was rescinded the same day. Id. at 110. On October 11, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination due to race (African American), color (Black), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, Complainant, along with other city carriers, was issued a Letter of Warning for allegedly missing an SPM scan. Complainant’s formal complaint requested compensatory damages as a remedy. The Agency accepted the complaint for investigation. Though the formal complaint alleged discrimination based upon race (African American), color (Black), and in reprisal for protected EEO activity, Complainant specified in his affidavit that he no longer believed that the discrimination was based upon race. Rather, he believed that the Letter of Warning was issued solely in reprisal for prior protected EEO activity. Id. at 95. Complainant went on to specify that he believed that he was issued the Letter of Warning because a Union Steward (Union Steward) represented his coworker, in the Union Steward’s official capacity, in an unrelated EEO complaint and that his Manager (Manager) had directed Supervisor to issue disciplinary actions to City Carriers who were represented by Union Steward in retaliation for Union Steward’s participating in EEO matters on behalf of Complainant’s coworker. Id. In his affidavit, Complainant withdrew his allegations of discrimination based upon race and color. Id. at 102. Union Steward’s affidavit, which Complainant referenced, asserted that approximately 21 Letters of Warning were issued to varying Agency employees between August and September 2019. Union Steward also stated that Manager instructed Supervisor to issue discipline to as many carriers as possible in reprisal for Union Steward’s representation of Complainant’s coworker, so as to deter Union Steward from representing employees in EEO complaints. Union Steward provided a list of all employees that were issued disciplinary actions under Supervisor. Out of 15 instances of discipline issued by Supervisor, seven were for black employees and eight of the individuals were white. 2020004102 3 Of ten employees disciplined under the prior supervisor, seven were black individuals, one was white, and two were to an unidentified individual. Manager was in his position throughout the tenure of both supervisors. Id. at 111-12. At the conclusion of the investigation, Complainant was issued a notice of right to a hearing before an Administrative Judge (AJ). Id. at 50. The Agency issued its final decision dismissing the complaint due to mootness of the issue pursuant to 29 C.F.R. § 1614.107(a)(5). In the alternative, the Agency found that Complainant did not show that the Letter of Warning constituted unlawful discrimination or retaliation. Complainant filed the instant appeal on July 8, 2020. CONTENTIONS ON APPEAL Complainant contends that the Agency has created a hostile work environment, with a pattern of “abuse and discrimination” at the specific site. He specifically noted the receipt of his Letter of Warning. See Complainant Brief at 6. Complainant reaffirms his allegation of discrimination based upon race (African American) and color (black) in his brief.2 Id. at 1. He further lists the carriers, the majority of whom he asserts are black, who were issued Letters of Warning. Complainant’s brief notes that all of those Letters of Warning were rescinded. Id. at 4-5. Complainant, finally, asserts that he, and other carriers, were disciplined in retaliation of Union Steward representing a coworker in a harassment claim, and any assistance that Complainant may have offered. Id. at 3. In addition to the aforementioned Letters of Warning, Complainant alleges a number of other instances of conduct that constitute “abuse and discrimination” by management in his specific Agency office. Id. at 7. He alleges harassment and bullying of City Carrier Assistants.3 Id. The Agency did not submit a brief in support of its decision. 2 The Commission notes that Complainant specifically withdrew his claims of discrimination based upon race and color in his affidavit. Claims File at 102. Nonetheless, as the Agency investigated and addressed the basis of race in its FAD, the Commission will so address the basis of race here. 3 A review of the record reflects that these issues resulting in a pattern of harassment were not counseled, and both the Formal Complaint and Complainant’s Affidavit are limited to the Letter of Warning. See Complaint File at 55, 91-99. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). If Complainant wishes to pursue these claims of harassment through the EEO process, he is advised to contact an EEO Counselor. 2020004102 4 ANALYSIS AND FINDINGS 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 Ch. 9, § VI.A. (Aug. 5, 2015) (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”). Preliminary Matter As outlined above, the Agency dismissed the matter as moot pursuant to 29 C.F.R. § 1614.107(a)(5). Complainant has alleged compensatory damages. In cases involving compensatory damages, the Commission has held that an agency must address the issue of compensatory damages before it can dismiss a complaint for mootness. As such, a dismissal due to mootness is not proper for this complaint. See Ness v. U.S. Postal Serv., EEOC Appeal No. 01981368 (Nov. 21, 2000). However, the Agency has investigated the matter and issued a decision on the merits. Therefore, the Commission will address the issue on the merits of the claim. Disparate Treatment 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 a 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of discrimination in the context of disciplinary action, appellant must prove: 1) that he is a member of a protected class; 2) that he engaged in conduct similar to that of employees outside of his protected class; and 3) that he was disciplined more harshly than other similarly situated employees not of his protected class. Moore v. City of Charlotte, N.C., 754 F.2d 1100, 1105-06 (4th Cir.); cert. denied, 472 U.S. 1021 (1985); Mosely v. Gen. Motors 2020004102 5 Corp., 497 F.Supp. 583, 589 (E.D. Mo. 1980); aff'd, 691 F.2d 504 (8th Cir. 1982); Worthy v. U.S. Steel Corp., 616 F.2d 698 (3rd Cir. 1980). Assuming, arguendo, that Complainant had established a prima facie case regarding discrimination based upon race, color, and in retaliation for prior protected activity, he does not establish that he was subjected to discrimination. Specifically, the Agency has asserted a legitimate, non-discriminatory reason for issuing Complainant a Letter of Warning. Supervisor stated that, despite numerous conversations, Complainant did not check his alerts and respond in a timely fashion. As such, Supervisor issued the Letter of Warning to ensure that a performance deficiency was addressed to ensure compliance in the future. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Upon review, we find that Complainant has not demonstrated evidence that the Agency issued a Letter of Warning due to his race. Complainant specifically asserted that the Letters of Warning were issued to a number of employees, the majority of whom are black, and that those Letters of Warning were rescinded. Complainant asserts, in his brief, that Supervisor was instructed to issue discipline to as many City Carriers as were possible, the majority of whom were black. Complainant Appeal Brief at 4-5. However, Union Steward’s affidavit provided a list of employees, both black and white, who were issued discipline by Supervisor and Manager. Therefore, we find that there is no evidence that, in this case, Complainant was issued the Letter of Warning due to his race. Complainant also alleged that the Letter of Warning was issued in reprisal for protected activity. Specifically, he argued that the Letter of Warning was issued to deter Union Steward from representing bargaining unit employees in future EEO activity. Complainant, however, has not provided evidence, beyond opinion and conjecture of himself and Union Steward, to support his opinion. Furthermore, Complainant’s disciplinary interview indicated that he forgot the scan. He has not specifically disputed that he did not get a scan, nor that he answered the scan in question. Moreover, he has not provided evidence of this assertion nor evidence that is sufficient to prove, beyond a preponderance of the evidence, that the Agency issued the Letter of Warning on the basis of his protected classes. Therefore, upon review, we find that the Agency has articulated a reasonable, non-discriminatory basis for its discipline of Complainant, and Complainant has not provided sufficient evidence to persuade the Commission that the Agency acted on the basis of any protected class, to include race, color, and prior EEO activity. As such, Complainant has not met the elements of a claim of discrimination with regard to disciplinary matters. 2020004102 6 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 decision 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 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. 2020004102 7 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 December 28, 2021 Date