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

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020000924 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000924 Hearing No. 420201800018X Agency No. 4G350011817 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 19, 2019 Final Order concerning an 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 City Carrier, Q-01, at the Agency’s Tuscaloosa Post Office in Tuscaloosa, Alabama. On July 7, 2017, Complainant filed a Formal EEO Complaint alleging discrimination by the Agency on the basis of race (Caucasian) when: on May 11, 2017 she received a Letter of Warning (“LOW”) for an industrial accident that occurred on or about April 10, 2017. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge 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. 2020000924 2 (“AJ”). Complainant timely requested a hearing and an AJ was assigned to her case. Then the Agency submitted a motion for a decision without a hearing. In accordance with 29 C.F.R. § 1614.109(g)(2), Complainant was provided with an opportunity to respond in opposition to the Agency’s Motion within 15 days of receiving it. When Complainant did not respond, the AJ issued a decision without a hearing based on the ROI and the Agency’s Motion. The record contains the following undisputed facts: Complainant’s first level supervisor (“S1,” Black/African American), was a Supervisor Customer Service, EAS-17. S1 reported to the Postmaster, EAS-22, (“PM,” Black/African American). When enforcing Agency policies, S1 and PM exercised progressive disciplinary action, in accordance with Article 16 of the National Agreement between the Union and The Agency. Issuing “progressive” discipline under Article 16 meant “issuing lesser discipline (e.g., a letter of warning) for a first offense and a pattern of increasingly severe discipline for succeeding offenses.” The Agency’s Handbook M-41, City Delivery Carriers Duties and Responsibilities, instructs carriers to “conduct your work in a safe manner so as not to endanger yourself or others” and “always exercise care to avoid personal injury and report all hazardous conditions to the unit manager.” Handbook M-41, 112.4 & 133.1 (Mar. 1, 1998). On April 11, 2017, Complainant was collecting mail at the end of her route, and stepped backward over a curb. Her right ankle, which was weak due to a prior injury “gave out” causing her pain in her foot and ankle, and numbness in her leg. Upon her return to the station, she immediately informed PM and S1 of the injury and requested a CA-1 Form, for workers compensation. According to Complainant, approximately 15 minutes elapsed between the accident and when she notified Management, as she was at the end of her route when it occurred. On May 9, 2017, Complainant was subjected to an investigative interview by PM regarding the April 11, 2017 accident. She disputed that her ankle injury was “preventable” and said she did not know what safety rule she broke. On May 11, 2017, S1, after consulting with PM, issued Complainant a Letter of Warning (“LOW”) which stated: On April 11, 2017, you were involved in an industrial at-fault accident. An Investigation of this reveals you were robbing the collection box when you stepped back off the curb and injured your right ankle. You suffered injuries as the result of your failure to follow basic safety rules. You have been instructed to follow safety rules [regarding] slips, trips and falls. Also, you did not call your supervisor immediately when the accident occurred. You failed to follow instructions and are charged accordingly. The Agency states that the LOW was “progressive discipline.” Complainant sustained five accidents between January 2012 and December 2017, the highest rate of any carrier in the facility. 2020000924 3 Significantly, the April 11, 2017 accident was Complainant’s second accident in less than a year. Following Complainant’s previous accident on October 26, 2016, S1 took non-disciplinary action by having a discussion with Complainant. S1 and PM state that Complainant was previously aware of Agency safety protocol because she gave safety talks to the other carriers. Complainant’s safety knowledge can also be inferred from her 30 years of experience working at the Tuscaloosa Post Office and her role as the shop steward. In the ROI, Complainant testifies, “I do not know what Instructions they claim I did not follow. My right ankle was previously injured when I broke it in April 2015. Everyone in management knew it… My ankle just turned because it is weak.” Complainant also stated that she was unsure if she was required to call in the injury or report it when she got back to the station, as it was “not clear.” Regardless, S1 maintains that Complainant broke Agency rules when she failed to call when the accident occurred. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. 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, he or she 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2020000924 4 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). 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 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). The Agency’s legitimate nondiscriminatory reasons for issuing the May 11, 2017 LOW following Complainant’s accident were that the LOW was an act of progressive discipline for Complainant’s involvement in a preventable accident, and, Complainant failed to follow the reporting procedure for on the job accidents. Specifically, S1 testifies that “the procedure is to contact your supervisor immediately after an accident.” PM reasoned that because the April 11, 2017 accident was her “second industrial accident in less than a year,” following multiple non- disciplinary corrective actions, it was appropriate for S1 to take progressive disciplinary action by issuing the May 11, 2017 LOW. Complainant argues questions of material fact exist as to whether the accident on April 11, 2017 was “preventable,” and if she failed to follow instructions. While Complainant’s right ankle may have been particularly susceptible to injury, the manner in which she sustained the injury, stepping backward off of a curb, was preventable. As for failure to follow instructions, S1’s assertion that Complainant did not report the accident with sufficient immediacy is less supported by the record. Only 15 minutes passed between when the April 11, 2017 accident occurred and when she reported it. The Agency has not provided a policy that states that an employee must call management when an accident occurred, or shown her the specific instruction it states that she failed to follow. In a grievance she filed over the same event, Complainant asserts that there is no rule that you must report an accident within a certain number of minutes. Nevertheless, the time it took to report her accident is not necessarily material to whether the LOW was issued in a discriminatory manner because the Agency also cites progressive discipline as its legitimate nondiscriminatory reason for issuing the LOW, which is consistent with its internal policies and its agreement with the Union. Complainant has not demonstrated that the Agency’s explanation was pretext for a discriminatory motive. 2020000924 5 For purposes of establishing pretext, comparative evidence relating to other employees is considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the employees' work situation are identical or nearly identical, i.e., the employees report to the same supervisor, perform the same job function, work during the same time periods, and, in instances where the Agency is responding to “problem conduct” (e.g. attendance deficiencies), engaged in the same conduct. See Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2001), Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000). For claims where the alleged discriminatory action is an agency’s response to “problem conduct,” where the proffered “comparator's conduct was materially distinguishable from that of complainant, he or she is not “similarly situated” to Complainant. See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) (comparator’s conduct was materially distinguishable from that of the complainant where the comparator was disciplined for not routinely requesting identification of all customers, while complainant had not requested identification and had actually served alcohol to minors), see also Complainant v. Dep’t of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015) (comparator and complainant were subject to different disciplinary actions because they committed different infractions, which rendered two different disciplinary findings). Here, Complainant names five comparator employees, (“C1,” “C2,” “C3,” “C4,” and “C5,” Black/African American) who were also City Carriers and reported to S1. Complainant asserts that all five were “similarly situated” because they engaged in the same “problem conduct,” as she did, since all were involved in on the job accidents. According to Complainant, her comparators were treated more favorably by management because they were not subjected to an investigative interview or issued a LOW.2 We have also determined that to be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. Grappone. Three out of Complainant’s five proffered comparators have only one accident on their records for the period of January 1, 2012 through December 2017. As the Agency contends the LOW was “progressive discipline,” it would not be expected that these individuals would have been treated in the same manner upon receiving their first accident as Complainant, whose most recent accident was her fifth on record. Complainant recounts that C1 hurt her knee while on her route, C2 injured herself when she stepped in a hole on her route, and C3 twisted her ankle, all of which constitute “preventable” accidents like the one Complainant experienced on April 11, 2017. However, PM’s testimony differentiates C4 and C5’s “problem conduct” as accidents involving factors outside their control (an unidentified substance leaking from a package, and getting chased by aggressive dogs). 2 The record does not specify how long it took for each of the proffered comparators to report their accident to S1. As Complainant was already provided an opportunity to engage in discovery, she has waived her right to further develop the record. 2020000924 6 Therefore, it would be expected that C4 and C5 would be treated in the same manner as Complainant, so they cannot be considered comparator employees. Alternately, both C4 and C5 could not be comparators because they have only one accident on their records. The Agency differentiates Complainant’s conduct from that of C1, C2, and C3 by noting that Complainant was involved in five industrial accidents between January 1, 2012 and December 2017. Also, unlike her comparators, Complainant was involved in two accidents in less than a year. As the Agency was applying progressive discipline, it would not be expected that the Agency would issue a LOW to C1 who was involved in three accidents, C2, who was involved in one accident, and C3, who was involved in two accidents, where Complainant received her first LOW for accidents after her fifth preventable accident, and second in less than a year. Complainant has not shown that her proffered comparators were similarly situated to her in order to establish that the Agency’s stated reasons for issuing the LOW were pretext for discrimination based on race. Additionally, complainant failed to present evidence that more likely than not, the agency's articulated reasons for its actions were a pretext for discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. CONCLUSION Having carefully reviewed of the record, including Complainant's contentions on appeal, we AFFIRM the Agency’s Final Order adopting the AJ’s Decision. 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). 2020000924 7 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). 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. 2020000924 8 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 June 14, 2021 Date