[Redacted], Chauncey M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2021002384 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chauncey M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions), Agency. Appeal No. 2021002384 Agency No. 1E-554-0016-20 DECISION On March 1, 2021, 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 January 26, 2021 final decision (FAD) 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 At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic, PS-09, at the Agency’s St. Paul Processing and Distribution Center in Eagan, Minnesota. On August 4, 2020, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against him for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on April 13, 2020, Complainant was issued a Notice of 7-Day Suspension for events that occurred on April 4, 2020. The Agency accepted the complaint and conducted an investigation into the matter. The investigation showed that on April 4, 2020, a Supervisor of Maintenance Operations (SMO1) 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. 2021002384 2 observed Complainant riding a bicycle at the St. Paul Processing and Distribution Center. SMO1 instructed Complainant to stop riding the bicycle due to a new policy. In response, Complainant asked for the bicycle policy and requested a union steward. SMO1 indicated that he followed Complainant, Complainant yelled at him to “stop following me” and rode towards the loading dock and through the staging area. SMO1 indicated that he called the Manager of Maintenance Operations (MMO) for assistance. MMO indicated that when he arrived at the scene, he observed Complainant yelling and videotaping with his phone. MMO told Complaint to put his phone away and that he had been told not to videotape inside the post office before. Complainant then stopped. MMO told Complainant to return the bicycle to limit the spread of Covid-19. Complainant indicated that he needed the bicycle because he had a bad knee. SMO1 replied that he had previously asked Complainant to bring a physician note for his knee. MMO stated that Complainant became hostile and lunged toward him and SMO1 and called them both “liars.” MMO stated that Complainant called SMO1 a “dope head” and asked for a union steward. MMO told Complainant to settle down and that he would get Complainant a union steward. According to MMO, when he turned away from Complainant to walk east, he heard a noise and when turned his head he saw Complainant advance towards him quickly and in an aggressive manner. MMO believed that Complainant was going to tackle him and asked Complainant to get out of his space when Complainant was one foot away. Complainant stated that SMO1 walked to where he was on the workroom floor and requested that he get off the bicycle. Complainant stated that he told SMO1 to “stop it right there and get me a [union] steward.” Complainant stated that he asked SMO1 for a union steward more than eight times and instead of getting the union steward, SMO1 followed him around the workroom floor. Complainant stated that he asked SMO1 not to follow him, but SMO1 contacted MMO. Complainant indicated that SMO1 and MMO badgered him on the workroom floor in retaliation for his prior EEO activity (Agency Case No. 4E-553-0047, Agency Case No. 1E-554-004-18, and Agency Case No. 1E-554-0009-19). The investigation showed that another Supervisor of Maintenance Operations (SMO2) was responsible for issuing Complainant a Notice of 7-Day Suspension for the events that occurred on April 4, 2020. SMO2 was not at work on the day of the incident. SMO2 stated that he when he returned to work, he received statements about the incident, and that he subsequently conducted his own investigation. SMO2 conducted interviews and found that the incident could have been deescalated if Complainant had complied with management’s direct orders. SMO2 decided to issue Complainant a Notice of 7-Day Suspension2 on the ground that Complainant violated several Agency policies. 2 The record reflects that Complainant filed a grievance concerning his 7-day suspension. On May 29, 2020, Complainant's grievance was settled, and as a result, the 7-day suspension was reduced to a Letter of Warning to remain in his file until September 4, 2020. 2021002384 3 The investigation showed that another Manager of Maintenance Operations (MMO2), concurred with decision to issue Complainant a Notice of 7-Day Suspension for the events that occurred on April 4, 2020. MMO2 indicated Complainant’s prior EEO activity was not a factor in the issuance of the suspension, and that facts set forth in the Notice of 7-Day Suspension explain the grounds for suspension. At the conclusion of the 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the FAD issued on January 26, 2021, the Agency determined that it articulated a legitimate, nondiscriminatory reason for the relevant actions that it undertook. The instant appeal followed. Complainant submitted a brief on appeal, arguing that the FAD should be reversed. ANALYSIS AND FINDINGS 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”). Complainant alleges the Agency retaliated against him by issuing a him the notice of suspension. In general, claims of retaliation are examined under the three-part analysis 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 retaliation 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant has the responsibility 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 252-5 3; McDonnell Douglas, 411 U.S. at 804. 2021002384 4 The established order of analysis where the first step normally consists of determining the existence of a prima facie case of retaliation, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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). Assuming, arguendo, that Complainant established a prima facie case of retaliation, the responsible Agency officials have articulated a legitimate, nondiscriminatory reason for the disputed action. In sum, the responsible managers stated that the notice of suspension was issued because Complainant’s behavior on April 4, 2020, was in direct violation of several policies. These policies are outlined in the Notice of 7-Day Suspension. The Notice of 7-Day suspension states that Complainant violated Agency policy to obey a direct order from his supervisor. If an employee has reason to question the supervisor’s order, the policy states that the employee must nevertheless carryout the order and the proper recourse is to file written protest. In addition, the Notice of 7-Day Suspension, states that Complainant violated Agency policy to discharge his assigned duties conscientiously and effectively. Lastly, the Notice of 7-Day suspension states that Complainant violated Agency policy to conduct himself in a manner that reflect favorably upon the Postal Service, that he be honest, reliable, trustworthy, courteous, and of good character and reputation. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination based on retaliation. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Complainant asserts that management wanted him to return the bicycle to limit the spread of Covid-19 in a work area, but there was no logic to management’s reasoning because the virus could be spread by employees walking into a work area. The Commission has considered his assertion and, upon review of the record, finds that Complainant has not offered sufficient evidence to establish that the Agency’s reasons were pretext for discrimination. Therefore, he has failed to establish his claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD. 2021002384 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). 2021002384 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 November 4, 2021 Date