[Redacted], Don S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Apr 8, 2021

Appeal No. 2020000789 (E.E.O.C. Apr. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020000789 Hearing No. 530-2019-00463X Agency No. 4C-190-0033-19 DECISION On October 14, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 19, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant (Caucasian) worked as a Carrier Assistant at the Agency’s Kensington Post Office in Philadelphia, Pennsylvania. On December 10, 2018, nearing the end of a twelve-hour shift, Complainant stated he informed his Supervisor (African-American) that his required time ended at 8:00 p.m. The Supervisor remarked that the rule did not matter and instructed Complainant to complete his assignment. 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. 2020000789 2 Instead, Complainant returned with approximately one dozen undelivered packages, stating that he felt incapable of safely working longer and that doing so would violate the Collective Bargaining Agreement (CBA). The Supervisor reported Complainant’s refusal to follow an order. Consequently, Complainant was terminated during his probationary period. Believing that his termination was discriminatory, Complainant filed a formal EEO complaint on February 27, 2019. The Agency accepted Complainant’s complaint alleging his termination was discriminatory based on race, as well as the result of unlawful retaliation for prior protected activity. Following an investigation, 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 (AJ). Complainant timely requested a hearing. In July 2019, the AJ issued an Order for Initial Conference Report and Teleconference. Complainant was ordered to identify evidence from the ROI establishing that discrimination occurred and the Agency was required to identify its legitimate non- discriminatory reason/s for its action. In response, Complainant reiterated his belief that he was assigned tasks which could not be completed within twelve hours and that he had been required to work additional hours in violation of the CBA and his own safety concerns in order to complete the assignment. Thereafter, he was terminated based upon this sole incident. Complainant also highlighted inadequacies in the ROI. Specifically, Complainant observed that while the ROI included a list of employees who worked on December 10, 2018, it failed to identify the race of the individuals, whether they were a probationary employee, or whether any others also left without completing the assignment. More broadly, Complainant sought information regarding a list of employees at the Kensington Post Office terminated in the months before and after his termination, and the reasons for termination. Complainant argued that it was also relevant to have collected information during the investigation regarding how many packages each employee was assigned to deliver on December 10, 2018. The Agency replied in a brief, two-paragraph statement, asserting that Complainant’s termination was based on his refusal to complete his assigned delivery duties and his status as a probationary employee within his 90-day evaluation period. Additionally, the Agency noted that the CBA does not prohibit employees from working more than twelve-hour shifts during peak season and the union had not filed a grievance on Complainant’s behalf. Finally, according to the Agency, “there exists no evidence of any similarly situated employee being treated differently.” Following the parties’ submissions and an initial status conference, on September 9, 2019, the AJ issued a decision dismissing the complaint pursuant to 29 C.F.R. § 1614.109(b), for failure to state a claim. Specifically, the AJ dismissed Complainant’s reprisal claim, reasoning that Complainant failed to identify any prior protected EEO activity. 2020000789 3 Instead, the AJ noted that Complainant contended that he was retaliated against for refusing to follow an order that would violate the CBA. According to the AJ, at no time did Complainant assert his right to be free of discrimination. Regarding the claim of racial discrimination, the AJ summarily found that, “Complainant offered no evidence to establish an inference that his race, rather than his disregard of his manager’s order motivated the decision to terminate, other than the fact that his supervisor was of a different race than he is.” Moreover, Agency representatives attested that Complainant was the only employee who refused a direct order to complete the deliveries. The AJ found that Complainant did not identify any other similarly situated individual outside his protected basis that was treated differently. The AJ concluded, that “Complainant has not satisfied his initial burden of showing actions taken by the Agency from which one can infer… discriminatory [animus]” and therefore the case was “dismissed without a hearing pursuant to 29 C.F.R. § 1614.109(g).” On September 19, 2019, the Agency issued a final action fully implementing the AJ’s decision. Complainant filed the instant appeal. ANALYSIS Standard of Review In rendering this appellate decision, we must review de novo the AJ's legal and factual conclusions and the Agency's final order adopting them. 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 EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999) (providing that an AJ's “decision to issue a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de novo”). This essentially means that we will look at this case with fresh eyes. We are free to accept (if accurate) or reject (if erroneous) the AJ's and Agency's factual conclusions and legal analyses - including on the ultimate fact of whether intentional discrimination occurred and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 it “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”). Procedural Dismissal - Retaliation Claim EEOC Regulation 29 C.F.R. § 1614.109(b) allows an AJ to “dismiss complaint pursuant to § 1614.107, on [the AJ’s] own initiative, after notice to the parties, or upon an agency’s motion to dismiss the complaint.” In turn, 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 2020000789 4 Here, there is no evidence that the AJ notified the parties of her intent to dismiss a portion of the complaint or that the Agency filed a motion to dismiss. Nevertheless, the record does show that Complainant clearly alleges his termination occurred in reprisal for refusing to work beyond a twelve-hour limit. He has not provided any information indicating that the reprisal claim was related to any prior EEO complaint or other prior activity protected by Title VII. When a complaint of reprisal fails to identify EEO or other protected activity, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4, 1999). Therefore, we find that the AJ correctly determined that Complainant failed to allege a claim of retaliation for prior protected EEO activity and properly dismissed his retaliation allegation for failure to state a viable claim under Title VII. Merits Determination - Race Claim The AJ also summarily concluded that Complainant failed to point to any evidence to support an inference of racial discrimination. In three sentences, the AJ determined that Agency witnesses stated that Complainant was the only employee to refuse the order to complete his task and Complainant failed to identify any similarly situated comparators that were treated more favorably. While the AJ’s decision suggests that Complainant’s race claim was also dismissed procedurally for failure to state a claim, the AJ appears to have made a determination on the merits by concluding that Complainant was not subjected to unlawful discrimination. We note that the AJ’s conclusion is punctuated by citation to 29 C.F.R. 1614.109(g), which allows an AJ to grant summary judgment when she finds there is no genuine issue of material fact. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Here, the AJ made no such review or determination. Moreover, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given: (1) ample notice of the proposal to issue a decision by summary judgment, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision by summary judgment. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). There is no evidence in the record before us that such notice was provided to the parties. 2020000789 5 On appeal Complainant identifies several significant inadequacies with the evidence in the ROI, which was the basis for the decision by summary judgment. Although an “Overtime Alert Report” lists approximately thirty employees, including Complainant, who had worked during the relevant pay period, it is unclear who precisely worked on December 10, 2018. More importantly, nowhere in the record are the races of these colleagues identified. At a minimum, the report of investigation was fatally flawed as a basis for a decision by summary judgment due to the failure to identify the race of the potential comparators. Moreover, as noted by Complainant, no inquiry was made with respect to the amount of work other employees were given during that shift or their probationary status. None of the three Agency officials that submitted affidavits answered the questions regarding comparators. Instead, the questions were left blank. While the AJ contends that it was Complainant’s burden to provide evidence of comparators, in many instances, as here, it is information within the Agency’s control. Finally, while the Agency’s response to the AJ referenced the absence of a grievance filed on behalf of Complainant, the record does contain an April 22, 2019 Step B Decision regarding the December 10, 2018 incident. The decision identifies Complainant and three other employees, who were found to have worked excessive hours. At a minimum, an inquiry regarding these comparator employees should have been conducted during the investigation. The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have “a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.” See EEO MD- 110, at Ch. 7, § 1.; see also 29 C.F.R. § 1614.109(e). In light of the various shortcomings in this case, both with the ROI and the application of summary judgment, we find that the AJ improperly made a determination regarding Complainant’s race claim without a hearing. CONCLUSION The Agency’s decision is AFFIRMED in part, with respect to the dismissal of Complainant’s reprisal claim. The decision regarding the claim on the basis of race, however, is VACATED and the matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Philadelphia District Office a request for a hearing within 15 calendar days of the date this decision is issued. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance 29 C.F.R. § 1614.110. 2020000789 6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020000789 7 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020000789 8 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 April 8, 2021 Date