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

Equal Employment Opportunity Commission

Jan 27, 2021

Appeal No. 2021001009 (E.E.O.C. Jan. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colene R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001009 Hearing No. 510-2020-00043X Agency No. 4G-335-0155-19 DECISION On October 21, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2020 final action 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 During the relevant period, Complainant worked as a Rural Carrier at the Agency’s Vero Beach Citrus Ridge Branch in Vero Beach, Florida. On June 4, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency engaged in unlawful retaliation for prior EEO activity when: 1. on May 2, 2019, she was placed on Emergency Placement; and 2. on May 23, 2019, she was issued a Notice of 14-Day Suspension. 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 2021001009 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on September 14, 2020. Complainant responded to the Notice of Intent. On October 6, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued its final action implementing the AJ’s decision. 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). 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs 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 Center v. Hicks, 509 U.S. 502 (1993). 3 2021001009 In finding no discrimination by summary judgment, the record developed during the investigation established the following undisputed facts. Complainant’s supervisor was the Supervisor Customer Services. The Postmaster of Vero Beach was unavailable during the period at issue and the Postmaster of the Agency’s Kissimmee, Florida facility was brought in as a concurring official. Regarding claim 1, Complainant asserted that on May 2, 2019, she was placed on Emergency Placement. The AJ noted that on May 2, 2019, Complainant’s supervisor was conducting a safety observation of Complainant on her route. She approached Complainant and informed Complainant that she did not turn off her postal vehicle when she got out to deliver a parcel. Complainant denied that the vehicle was running. The supervisor told Complainant that action would be taken against her as a result of the safety violation. The supervisor stated that Complainant began yelling at her, “saying I [the supervisor] was the devil, telling me I needed to get a life, telling me her God would prevail for her again.” Thereafter, the supervisor contacted the Manager, Customer Services (“manager”) on the phone about the safety violation and the manager could hear Complainant yelling in the background. The supervisor asked the manager to come to her location. When the manager arrived, she saw Complainant approximately 150 feet down the road, yelling “into the wind.” Customers were slowing down and going around her. The manager asked Complainant to calm down and stop yelling. The manager instructed Complainant to stop yelling and get in the car so she could take Complainant back to the office. Complainant got in the car but continued to yell and then got out of the car to yell again at the supervisor. The manager again informed Complainant that it was a direct order to stop yelling and get in the car. Around that time, two laborers both arrived. They had been asked by the manager to come to the scene and retrieve Complainant’s postal vehicle. When the two laborers approached, Complainant jumped back out of the car and started yelling at them as well as the supervisor. The two laborers made several attempts to get Complainant back into the car to drive her back to the station. Complainant acknowledged that she was upset and very likely took various actions which she should not have taken. Subsequently, the supervisor placed Complainant on Emergency Placement in an off-duty status effective that day. The Postmaster of the Kissimmee Post Office was the concurring official regarding Complainant’s Emergency Placement in off-duty. for “Unsatisfactory Performance - Failure to Follow Instructions - Unsafe Acts” and “Improper Conduct.” Regarding claim 2, Complainant alleged that on May 23, 2019, she was issued a Notice of 14-Day Suspension. 4 2021001009 On May 23, 2019, Complainant was issued a Notice of 14-Day Paper Suspension for or “Unsatisfactory Performance - Failure to Follow Instructions - Unsafe Acts” and “Improper Conduct.”2 Management witnesses stated the suspension resulted from the incident that occurred on May 2, 2019, detailed above. Here, the undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-retaliatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask unlawful retaliatory animus. As noted by the AJ noted in the Report of Investigation, Complainant “made a number of unsubstantiated claims about the supervisor having a romantic relationship with the previous supervisor whom Complainant filed the prior EEO complaint against.” However, the AJ correctly determined that she presents nothing to support this beyond her own speculation and conjecture. There is nothing in the undisputed evidence of record that the supervisor had any knowledge of her prior EEO activity prior to the stop for unsafe driving practices.” Moreover, there was no dispute that the Postmaster of the Kissimmee Post Office, who signed off the Emergency Placement, worked in a different facility and did not know Complainant at all. In sum, there is simply no evidence to suggest that retaliatory animus played a role in the events at issue. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no unlawful retaliation in violation of Title VII. 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. 2 As a result of a grievance settlement, Complainant’s 14-Day Suspension was reduced to a 7-Day Suspension. 5 2021001009 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). 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. 6 2021001009 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 January 27, 2021 Date