[Redacted], Evan S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 24, 2022

Appeal No. 2022000172 (E.E.O.C. Jan. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laurence F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021004457 Hearing No. 530-2019-00306X Agency No. 4C-450-0098-19 DECISION On August 4, 2021, 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 July 13, 2021, 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. 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 full-time Custodian at the Agency’s Processing and Distribution Center (PD&C) in Columbus, Ohio. Complainant is black/African American with prior EEO activity. Report of Investigation (ROI) at 103-04. In 2017, the Postal Service instituted the Custodial Team Clean (CTC) way of vacuuming, which required the use of a vacuum worn on the back. ROI at 193. Two years later, Complainant was purportedly injured on the job. 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 2021004457 While his claim was pending in the Office of Workers Compensation (the claim was eventually denied), Complainant was placed on light duty as a precaution. ROI at 487-88. During that time period, Complainant informed his first-line Supervisor, the Supervisor of Maintenance Operations (Supervisor), that he could not perform vacuuming duties along his route due to a medical condition. ROI at 105. A Memorandum of Understanding to the applicable collective bargaining agreement (CBA) provides that light duty assignments will be not more than 30 calendar days in duration unless the employee submits acceptable medical documentation indicating that a longer period is mandated. ROI at 238. See also ROI at 192. As such, employees seeking/receiving/serving in light duty assignments must submit medical documentation every 30 days. According to Complainant, he had provided medical documentation every 30 days as required. He asserted that his condition is permanent. ROI at 107. Assuming that Complainant had the proper paperwork, but that the paperwork had not made its way to him, Supervisor had previously allowed Complainant to use a vacuum cart instead of the vacuum backpack as required. ROI at 193. However, the medical documentation that Complainant had submitted was completely silent as to lifting restrictions or a restriction against carrying items on the back. ROI at 232-34. When Supervisor became aware of this fact, he asked Complainant why he was trying to change assignments. Complainant informed Supervisor that he could not carry the vacuum cleaner on his back. ROI at 105. Supervisor sent Complainant home pending receipt of required medical documentation clearly specifying his limitations and restrictions. ROI at 192 and 232-34. Six weeks later, Complainant obtained (and submitted) medical documentation indicating a 20-pound lifting restriction and no carrying items on his back. ROI at 235. On July 7, 2019, Supervisor called Complainant on the radio and Complainant did not respond. When Supervisor later located him, Complainant was wearing a hoodie. Supervisor asked Complainant to remove his hoodie so that Supervisor could see whether Complainant was wearing Bluetooth earphones. ROI at 201. Complainant admitted that he refused the instruction. ROI at 117-18. Section 665.15 of the Employee and Labor Relations Manual (ELM) provides that employees must obey the instructions of their supervisors. If an employee has reason to question the propriety of a supervisor’s order, the individual must nevertheless carry out the order and may immediately file a protest in writing to the official in charge of the installation or may appeal through other channels. ROI at 551. Supervisor reminded Complainant of the obligation to follow instructions and gave a stand-up/safety talk on Bluetooth interfering with Wi-Fi in the facility. ROI at 201. On October 4, 2019, before Complainant began his tour of duty, Supervisor was positioned near the time clock and observed several employees enter and clock in. When Complainant entered the work area, Supervisor noticed that Complainant did not approach the electronic badge reader (EBR) clock to clock in. ROI at 256. After approximately five minutes, Supervisor asked Complainant whether he clocked in. Complainant responded that he had clocked in. Supervisor asked Complainant how many timecards he had; Complainant laughed but did not respond. Id. Supervisor took the timecard that he had not seen Complainant used, had it deactivated, and had Complainant issued a new badge/timecard. Id. 3 2021004457 Complainant failed to clock out on September 24, 2019. ROI at 260. The next day, on September 25, 2019, Supervisor reminded Complainant of the need to clock out and instructed him to clock out. ROI at 281. Four days later, on September 29, 2019, Complainant again failed to clock out. As Complainant had not clocked out, management could not determine whether Complainant was in the building. Also, because he failed to clock out, Complainant would go into an overtime status. ROI at 260. Supervisor conducted a pre-disciplinary interview (PDI) with Complainant regarding the failure to clock out and issues regarding timecards. ROI at 275 and 281. Supervisor also issued Complainant a letter of warning (LOW) regarding possession of multiple timecards and the repeated failure to clock out. Id. at 281. The LOW was later rescinded. ROI at 499. Custodians are responsible for numerous duties to include cleaning restrooms, mopping, and vacuuming. The duties specifically include “cleans hardware and toilet fixtures.” ROI at 325-26 and 382-85. Custodians in the Columbus P&DC receive facility route assignments on a rotational basis. Complainant asserted that he was required to perform more work than other custodians. ROI at 166 and 171-72. On August 7, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 30, 2019, Complainant was sent home; 2. On dates to be specified, Complainant was required to provide medical documentation every thirty days; 3. On a date to be specified, Complainant was told to remove his hoodie; 4. On October 4, 2019, Supervisor took Complainant’s timecard and refused to return it to him while accusing him of having a 2nd timecard; 5. On October 5, 2019, Complainant was given a PDI; 6. On October 22, 2019, Complainant was issued a LOW dated October 16, 2019; 7. On unspecified dates, Supervisor required Complainant to perform more work than other custodians, including “detailing the restrooms.” 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 Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On June 14, 2021, the AJ assigned to the case issued a Notice of Intent (the Notice) to the parties. The Notice informed the parties that the AJ propose to issue summary judgment in this case based on determination that there appeared to be no issues of material fact or credibility to be determined at a hearing. Complainant did not respond to the Notice. 4 2021004457 The record also does not indicate that the Agency responded to the Notice. The AJ determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on July 6, 2021 in favor of the Agency. The AJ found that the record did not support a prima facie case of race or color discrimination or retaliation for prior protected EEO activity. According to the AJ, even assuming for purposes of analysis that the record established prima facie cases of discrimination and retaliation, Complainant's claims failed because the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1 and 2, Complainant was asked to supply medical documentation to support his claim that he could not carry out his custodial duty of vacuuming by using a vacuum strapped to his back. Complainant turned in documentation that did not list weight-lifting restrictions. His supervisor continued to ask him for appropriate medical documentation. Regarding claim 3, Complainant's supervisor instructed him not to wear a hoodie over his head while in the workplace. Supervisor felt that Complainant was ignoring pages communicating work instructions while using Bluetooth devices. Complainant objected to Supervisor’s instruction regarding the hoodie. Regarding claims 4, 5, and 6, Supervisor and Complainant had numerous discussions about problems Complainant was having with his timecards. Supervisor felt that Complainant was using multiple timecards for the purpose of evading proper ring in and ring out procedures. Supervisor held a PDI with Complainant concerning the timecard issue. Supervisor issued a Letter of Warning to Complainant. The warning was subsequently reduced to an Official Discussion pursuant to a grievance settlement. Regarding claim 7, Supervisor instructed Complainant to properly clean the restrooms. Complainant objected to being given this instruction, feeling that cleaning the restrooms was the responsibility of custodians on other shifts. The AJ observed that Supervisor is a black, African American; and that there was no evidence that Supervisor treated similarly situated employees outside of Complainant's protected classes differently under similar circumstances. The AJ concluded that the record did not support a finding that Complainant was subjected to discrimination or retaliation as alleged. The Agency subsequently issued a final order on July 13, 2021, adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not submit an Appeal Statement. 5 2021004457 On appeal, among other things, the Agency reiterates its stated reasons for the alleged actions. According to the Agency, Complainant failed to present prima facie evidence of discrimination based on any purview; and he failed to present evidence of pretext. The Agency requests that the Commission affirm its final order. STANDARD OF REVIEW 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. (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 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 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”). ANALYSIS AND FINDINGS 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. 6 2021004457 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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 (at first sight) 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). Here, we find that, even assuming Complainant established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. Specifically, consistent with the Memorandum of Understanding to the CBA, Supervisor sent Complainant home until he submitted medical documentation that clearly stated his limitations and restrictions. Consistent with applicable sections of the ELM, Supervisor instructed Complainant to remove his hoodie because he suspected that Complainant was using Bluetooth earphones which might have interfered with Supervisor’s ability to reach Complainant by radio. Also consistent with applicable sections of the ELM, Supervisor had a PDI and subsequently issued a LOW to Complainant for failure to follow instructions regarding having and using multiple timecards. Finally, Supervisor instructed Complainant to properly clean the restrooms consistent with duty responsibilities for Custodians in the Columbus P&DC. 7 2021004457 Complainant contended that the alleged management actions were motivated by discriminatory and retaliatory animus but presented no evidence to support his contention. He also did not refute the Agency’s stated reasons for the alleged actions. The record is devoid of any evidence that Supervisor’s work assignment, request for proper medical documentation, and other personnel decisions were motivated by Complainant’s protected bases. In fact, Supervisor was unaware of Complainant’s prior EEO activity. ROI at 191. Notably, Complainant has failed to show that he was treated less favorably than any similarly situated employee under similar circumstances. See Aguilar v. U.S. Postal Service, EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. Therefore, Complainant’s claims fail and he does not prevail. 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 order adopting the AJ’s decision finding no discrimination or retaliation. 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 8 2021004457 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. 9 2021004457 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 17, 2022 Date