[Redacted], Caroline E., 1 Complainant,v.Lloyd Austin III, Secretary, Department of Defense, (Defense Media Activity), Agency.

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020004875 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021000866 Agency No. 4E-970-0035-20 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s 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. Complainant received the Agency’s decision on October 19, 2020. Complainant worked as a Probationary City Carrier Assistant, 01/BB, at the Main Post Office in Salem. Oregon. On May 8, 2020, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (Pacific Islander) and national origin (Micronesia) when: 1. On March 12, 2020, Complainant was terminated during his probationary period; and 2. On March 19, 2020, Complainant discovered that his final paycheck did not include pay for accrued annual leave.2 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 The Agency dismissed several additional claims for untimely EEO Counselor contact. The Commission can find no basis to disturb the Agency’s dismissal decision regarding these claims. 2021000866 2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On August 14, 2020, Complainant requested a final decision. On October 14, 2020, the Agency issued its decision finding that Complainant failed to prove that he had been discriminated against, as alleged. 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 Chapter 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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since CSS1 and other management officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding Complainant’s termination, the notice he received on March 12, 2020 indicated that his job performance was unacceptable. We note in particular that Complainant was given ratings of “Unacceptable” in all six elements of his 30-day evaluation. IR 179, 181, 316-20, 329-30, 340, 350, 363, 365-69, 378-70. 386, 410-11, 415, 650. Complainant’s supervisor (S1) affirmed that Complainant was expected to carry 20-25 parcels per route. S1 stated that Complainant was unable to complete his Amazon route on Sundays. Additionally, S1 explained that the Agency’s process involves placing an employee on a route five or six times in a row for consistency. Complainant showed no improvement after his fifth time on the route. S1 stressed that management discussed Complainant’s performance with him and explained to Complainant that he was expected to carry the route and the Amazon route in the evaluated time. Complainant had initially started at the West Salem Post Office and was on the verge of termination, but the Station Manager gave him a second chance. S1 further noted that while Complainant had not yet received mounted delivery training and other training, that was not a factor in deciding to terminate his employment. IR 316-319. Several other management officials corroborated Complainant’s performance deficiencies. 2021000866 3 As to his final paycheck, management officials denied having any initial knowledge of the matter and noted that these issues were not handled locally upon separation of an employee. Nonetheless, the record reveals that Complainant’s workhours were adjusted upward effective April 1, 2020 to account for holiday leave and training. As a result of the adjustment, Complainant received a total of 38.49 additional hours. Complainant admitted that he eventually received his adjusted pay. IR 163-64, 191, 194, 355, 379, 442-44. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations put forth by the CSS and the other officials are pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d. EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why he believed that his race and national origin were factors in the Agency’s decision to terminate him and its errors in computing his final paycheck, Complainant replied that he was the only Pacific Islander and for that reason, he was treated unfairly by supervisors and management. IR 159-60, 164. Beyond these conclusory assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations provided by the CSS and the other members of management or which would cause us to question their truthfulness. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The weight of the evidentiary record in this case is not sufficient to support the existence of an unlawful motive attributable to the CSS or to any other management official who was involved in the above-described incidents. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021000866 4 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). 2021000866 5 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 16, 2022 Date