[Redacted], Elvis O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Aug 23, 2021

Appeal No. 2020001051 (E.E.O.C. Aug. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvis O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001051 Hearing No. 430201700158X Agency No. 4K230010116 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 25, 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 was employed by the Agency as a City Letter Carrier, Q-01, Saunders Station/Richmond Main Station, in Richmond, Virginia. 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. 2020001051 2 On July 5, 2016, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (Black/African American) and sex (male) when, on February 12, 2016, he was placed on emergency placement in an off-duty without pay status.2 The Agency accepted the complaint and conducted an investigation which produced, in summary, the following evidence. Complainant was responsible for delivering mail for route 20028. Complainant’s immediate supervisor (“S1,” African American female) was a Supervisor, Customer Service, and the Manager, Post Office Operations, (“M1,” Caucasian male) was his second level supervisor. If a letter carrier determined that a piece of bulk business mail was undeliverable, for example, a circular or paper addressed to a vacant property, such mail is placed (or “dumped”) into an Undeliverable Bulk Business Mail (“UBBM”) tub. Based on the record, dumping mail into the UBBM tub is essentially equivalent to throwing it out, so it is considered a serious offense if an employee is determined to have dumped mail that is deliverable into the UBBM tub. On February 10, 2016, S1 instructed Complainant to “clean route 20028 up before the holiday and to take the Richmond Metro mail pieces out for delivery.” On February 12, 2016, S1 and another Supervisor, Customer Service (“S2,” male, race not specified) found “a substantial amount” of deliverable mail from several routes in the UBBM tub. Among the deliverable mail were 90 pieces of mail for route 20028, including, but not limited to, sequential batches of the Richmond Metro paper that S1 specifically instructed Complainant to deliver two days earlier. On February 12, 2016, in the presence of the Union Steward, Special Agents from the Agency’s Office of the Inspector General (“OIG”) interviewed Complainant in what he described as an “accusatory manner.” During the interview, Complainant acknowledged that at least some of the mail presented to him by the Special Agents was for route 20028, but stated that he had no idea how the mail S1 instructed him to deliver on February 10, 2016, ended up in the UBBM. At the recommendation of the OIG Special Agents, Complainant was instructed to leave the premises and placed on Emergency Placement, Off-Duty Status without pay, pending further investigation. On February 26, 2016, S1 issued a formal notice of Emergency Placement to Complainant with M1 as the concurring official. Two of Complainant’s coworkers were also interviewed (“C1” and “C2”) on February 12, 2016. C1 (African American male), a Letter Carrier like Complainant, was observed by S1 and S2 dumping deliverable mail in the UBBM tub, leading to the search that resulted in finding deliverable mail from Complainant’s route. C2 (Caucasian male), a City Carrier Assistant, worked multiple routes as needed, and had been assigned to deliver the remainder of 2 The record contains two Pre-Arbitration Agreements, both dated October 29, 2016, which agree to make Complainant whole for the duration of his Emergency Placement/Off Duty Status. 2020001051 3 another Letter Carrier’s assigned route (“C3,” African-American female) when she left early on February 9, 2016.3 C2 alleged that he never saw the mail in question when he received the remainder of C3’s route, and did not know how 78 pieces of deliverable mail from that route ended up in the UBBM tub. According to C3, the mail was in her case when she left, and when she returned the next day it was not there, so she assumed it was delivered. S1 and M1 placed C1 and C3 on Emergency Placement in Off-Duty Status without pay, pending further investigation, but found insufficient evidence to warrant further investigation of C2. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation 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. After the parties were provided an opportunity to develop the record through discovery, the Agency submitted a motion for a decision without a hearing. When Complainant did not submit a response after requesting an extension, the AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency then 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). 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 3 C3 is identified as male in other parts of the record. 2020001051 4 Disparate Treatment 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. 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). 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 order to be considered similarly situated, the person with whom the complainant is comparing himself must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 68 (6th Cir. 1985); Majahad v. Dep’t of Labor, 915 F. Supp. 499 (D.C. MA 1996). 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. “dumping” deliverable mail), 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), see also See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002), Complainant v. Dep’t of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015). Assuming, for the sake of argument, that Complainant established a prima facie case for discrimination on the basis of race and sex, the Agency provided a legitimate 2020001051 5 nondiscriminatory reason for its act of placing Complainant on off-duty status without pay on February 12, 2016. Specifically, S1 and M1 had reason to believe that Complainant dumped a substantial amount of deliverable mail into the UBBM tub, which is considered a serious infraction violating internal policy and federal regulations, so it placed Complainant on Emergency Placement pending an investigation. The Agency established that a substantial amount of deliverable mail from Complainant’s route was found in the UBBM tub with documentary evidence including OIG investigative documents and affidavits for Complainant, S1 and M1. At this stage, to prevail, Complainant must provide evidence that the Agency’s stated legitimate nondiscriminatory reason was pretext for discrimination. As this appeal is of a decision without a hearing, Complainant need only establish that a question of fact exists as to whether the Agency’s legitimate nondiscriminatory reason is pretextual, which would then require a hearing to make a determination. Based on the record, Complainant raises arguments that, if supported by evidence, could establish a question of material fact regarding pretext. Specifically, he alleges that S1 and M1 have exhibited a history of discriminatory acts toward African American male employees, the OIG investigation was not sufficiently thorough, the decision to place him on Emergency Placement violated Agency policy and the National Agreement, and, multiple comparator employees outside Complainant’s protected categories received favorable treatment. Complainant alleges that discriminatory intent can be inferred because management has a history of treating female employees more favorably than male employees by, among other things, providing them with easier schedules. Not only does Complainant fail to offer supporting evidence, but the Agency provides evidence that when S1 became aware that deliverable mail dumped in the UBBM tub belonged to the route of a female letter carrier, similarly situated to Complainant (“C4,” African-American female), S1 and M1 responded the same way they did with Complainant. The record includes a March 21, 2016 notice of Emergency Placement in Off-Duty Status almost identical to the notice issued to Complainant, establishing that Complainant’s sex was not a factor in the decision to place him on Emergency Placement in Off-Duty status. Similarly, Complainant appears to argue that pretext for racial discrimination can be inferred, as he recounts hearing M1 use racially offensive language. However, Complainant testified that he was unable to provide specific examples for either assertion because he hadn’t realized he would need to. Rather, Complainant stated that it is M1’s “smart comments I hear all the time that makes me have no doubt in my mind that he is racist and prejudice. My case is a prime example. I didn't do anything wrong and I was set up by management. They have no proof and no evidence, they just put me out of work.” At this stage, Complainant’s general characterization of M1’s language, without evidence and specific examples, is insufficient to overcome the Agency’s legitimate nondiscriminatory reason. Moreover, M1 testified that he had no direct involvement in the matter aside from his role as concurring official, as S1 determined, at the advice of the OIG investigators, that Emergency Placement was appropriate. 2020001051 6 Complainant names multiple comparator employees outside his protected classes, including C2 and the Union Steward (African American, male), who were not investigated or subject to Emergency Placement, even though they also handled the mail in question. As the Agency already provided sufficient evidence that sex was not a factor in its decision to place Complainant on Emergency Placement, Off Duty Status, we address Complainant’s proffered male comparators only. The Union Steward is not outside Complainant’s protected classes, and even if he was, they held different positions, so they were not similarly situated. Likewise, Complainant and C2 were not similarly situated, as C2 was not responsible for delivering mail for a specific route. Also, unlike Complainant, who was specifically assigned to deliver the mail found in the UBBM tub, there was no evidence that the mail from C3’s route found in the UBBM tub was still in her case when he received it to deliver the remaining portion of her route. Complainant’s arguments about the deficiencies of the OIG investigation and dissatisfaction with how it was conducted, similarly are bare assertions without evidence or adequate specific examples. Complainant’s argument that he was placed on Emergency Placement “without proof” is not supported in the record. It is undisputed that a substantial amount of mail from Complainant’s route was found “dumped” in UBBM. The Agency also provided ample documentation to support that its response was consistent with applicable regulations, internal policies, and policies provided in the national agreement between the Agency and the Union. The Agency also provided evidence, such as the OIG Investigative Report, confirming that the mail from Complainant’s route found in the UBBM on February 12, 2016, was deliverable, further supporting the Agency’s legitimate nondiscriminatory reason. To the extent that Complainant argues that placement on off duty status without pay is a management decision that must be done with concurrence of upper management and Labor, the Agency provided sufficient documentation of the relevant provisions in its ELM and the National Agreement to support Emergency Placement under the circumstances. Additionally, S1 testified that Labor was notified. Therefore, upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, 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: 2020001051 7 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). 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” 2020001051 8 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 August 23, 2021 Date