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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2020005216 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elroy K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020005216 Agency No. 1C-441-0026-20 Hearing No. 532-2020-00068X DECISION On September 16, 2020, 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 September 21, 2020, final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) at the Agency’s Cleveland Field Office in Cleveland, Ohio. Complainant was hired to a temporary term of employment on November 9, 2019. See Report of Investigation (ROI) at 00076. The employment was conditioned on Complainant clearing a 90-day probationary period. Complainant asserts that on November 21, 2019, there was an argument between two female employees, and he was asked to write a statement. ROI at 00076. Complainant refused to do so. 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. 2020005216 2 Complainant also asserts that he made a Supervisor aware of his sexuality, as well as his medical conditions and restrictions on December 3, 2019. Id. He asserts that he submitted medical documentation of work-related restrictions on that date. See ROI at 00077-78. Thereafter, he alleges that he filed a prior EEO claim on December 29, 2019, and management retaliated against him. See ROI at 00078. On December 23, 2019, the Agency began the process of removing Complainant for lack of work. See ROI at 00229. On December 27, 2019, Complainant received a performance evaluation that included unsatisfactory scores. See ROI at 00221. Complainant’s last day was to be January 2, 2020. See ROI at 00044. On December 30, 2019, Complainant’s Supervisor (Supervisor) told him that he needed to work two hours of overtime. See ROI at 000182. Thereafter, a coworker (Coworker) overheard Complainant refer to his Supervisor as a “bitch.” Id. Coworker indicated that she was going to inform Supervisor of Complainant’s comment, and in response Complainant stated, “Call the bitch and fuck you bitch.” Id. Supervisor was called, and Complainant was instructed to leave. Id. Complainant refused to leave the premises when instructed to do so. Id. After finally exiting the building, Complainant remained on the premises, occasionally banging on windows. Id. As a result, the police were called. See ROI at 00197. Complainant fled the facility but was captured. See Id. at 00226. Following a search of his person, the police discovered a mouthwash bottle containing beer and a tea bottle containing liquor. Id. Due to these events, the Agency moved his separation day one day earlier. Complainant was separated from his position on January 1, 2019, and prior to working his full 90-day probationary period. See ROI at 00220. On February 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (sexual orientation) 2, religion (Christian), color (Black), disability (major depressive disorder, border personality disorder, high anxiety, and posttraumatic stress disorder (PTSD)), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On January 2, 2020, Complainant was terminated from his position as a PSE. 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 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020005216 3 Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 1, 2020, motion for a decision without a hearing and issued a decision without a hearing on September 16, 2020. On September 21, 2020, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In the decision, the AJ found that the legitimate, nondiscriminatory explanation for terminating Complainant was that Complainant’s behavior was completely unacceptable. The AJ stated that it was undisputed that Complainant ignored supervisory instructions, swore at his supervisors and coworkers, subsequently refused to leave the premises, threatened his coworkers and managers, pounded on the windows of the postal facility, and proceeded to run from police. The AJ also noted that, after Complainant was apprehended by the police, it was discovered that Complainant was in the possession of alcohol and that he was intoxicated. The AJ concluded that the Agency did not discriminate or retaliate against Complainant as alleged. On September 21, 2020, the Agency adopted the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant has not presented arguments on appeal. On appeal, the Agency contends that Complainant filed his appeal prematurely. The Agency notes that their motion was granted on September 16, 2020, and Complainant filed his appeal two days later on September 18, 2020, before the Agency issued their Notice of Final Action. In addition, the Agency presents the aforementioned series of events and argues that Complainant has failed to present prima facie evidence of discrimination. The Agency contends that it has set forth legitimate non-discriminatory reasons for its actions. ANALYSIS AND FINDINGS Premature Appeal Regarding the Agency’s contention that Complainant’s appeal was premature, we have generally held that where a premature appeal has been filed and the Agency subsequently issues a final action while the appeal remains pending, the issuance of the final agency decision cures the defect and makes the appeal ripe for adjudication. See Franchesca V. v. Dep't of the Treasury, EEOC Appeal No. 0120150620 (Mar. 24, 2017); Complainant v. Dep't of Veterans Affs., EEOC Appeal No. 0120120712 (June 18, 2014). As the Agency issued a final decision adopting the AJ’s decision on September 21, 2020, we find that the defect has been cured and the appeal is ripe for adjudication. Decision Without a Hearing 2020005216 4 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 Ch. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - 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 Ch. 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 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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a 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). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant responded to the Agency’s motion by stating his refusal to make a meaningful response. Specifically, Complainant stated “I’m not writing 17 pages I already wrote and will upload… I do not agree…” As such, Complainant has not provided any argument or evidence that there are material facts in dispute. Further, as noted above, the Commission finds that the AJ appropriately issued the decision without a hearing. Termination 2020005216 5 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affs. 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). We find that the preponderance of the evidence in the record does not establish that the Agency's legitimate, nondiscriminatory explanation for its action was pretext for discrimination. The Agency provided a legitimate, non-discriminatory reason for terminating Complainant. The record contains numerous documents confirming that on December 30, 2019, Complainant was hostile towards his coworkers and supervisors and was ultimately apprehended by police when he refused to leave the premises. Moreover, the police determined that Complainant had alcohol on his person. Following these events, the Agency provided Complainant a letter of separation terminating his employment as of January 1, 2020. We find that it is clear that Complainant's termination was based on his inappropriate conduct and not on his race, color, sexual orientation, religion, or disabilities. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. As evidence of pretext, Complainant asserts that on November 21, 2019, there was an argument between two female employees, and he was asked to write a statement. He refused to do so. Thereafter, Complainant alleges that management retaliated against him. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. 2020005216 6 In this case, Complainant has only made bare assertions that management officials discriminated against him, which are insufficient to prove pretext. Accordingly, we find that Complainant did not establish that the Agency discriminated against him when the Agency terminated his employment. Upon review, we find that Complainant has not provided evidence that he was terminated from his position due to his race, color, sexual orientation, disabilities, religion, or reprisal. Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision because the preponderance of the evidence in the record does not establish that discrimination occurred. 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. 2020005216 7 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. 2020005216 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 December 21, 2021 Date