[Redacted], Ezequiel P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021002377 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ezequiel P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002377 Hearing No. 480202000727X Agency No. 4F900000620 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 2, 2021 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier, PS-2, at the Beverly Hills Post Office, in West Hollywood, California. On February 22, 2020, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of sex (male), race (Hispanic), and color (white)2 when: 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 Complainant appears to also allege discrimination based on reprisal for protected EEO activity, asserting that Management wanted him “out of the building” because he was Union President for Branch #2293. While the Agency acknowledges that Complainant “often serves as an EEO representative,” we found no specific instances in the record where he engaged in protected EEO activity in this capacity. The AJ properly determined that status as Union President, in itself, is not protected under EEO statutes, and did not include reprisal as a basis. 2021002377 2 1. On August 24, 2019, he was placed out of work on Emergency Placement 16.7 (“EP 16.7”) in a non-pay status; 2. On October 4, 2019, he received a letter informing him that he would remain on EP 16.7 in a non-pay status; and, 3. The Postmaster (“PM”) intentionally delayed Complainant’s return to work by eight months as she did not conduct his fact-finding interview until May 15, 2020. The Agency’s investigation into the complaint revealed that on August 23, 2019, Complainant’s coworker (“C1”) sent a text message to management alleging that Complainant raped her. PM instructed Complainant not to come to work the next day and consulted managers in Human Resources (“HR”) and Labor Relations (“LR”). On an unspecified date, the Los Angeles Sheriff’s Department (“LASD”) also opened a criminal investigation of the matter. On August 27, 2019, PM issued Complainant a written notice that he was on Emergency Placement 16.7 (“EP 16.7”) effective August 24, 2019, because “Management received an allegation that you are being accused of rape of a fellow employee.” EP 16.7 refers to Article 16.7 of the National Agreement between the Union and the Agency, which allows management to immediately place an employee on off-duty status (without pay) in certain instances, such as failure to observe safety rules and regulations. Per Agency policy, while on EP 16.7, Complainant was to “remain on the Agency’s rolls until disposition of the case has been had.” The record indicates that by September 18, 2019, PM had interviewed C1, and needed to interview “a couple of people” to complete a fact-finding and bring Complainant back to work. Numerous coworkers and a supervisor submitted statements in support of Complainant’s character, recounting their experiences working with him (often for over a decade) and as their union representative. The statements also voiced safety concerns about C1’s conduct. On October 2, 2019, the Dispute Resolution Team (“DRT”) issued a Step B Grievance Decision instructing the Agency to rescind the August 24, 2019 EP 16.7, and reinstate Complainant with back pay. PM testifies that on October 3, 2019, “I made the decision [to return Complainant to work] after… repeatedly sending out emails with no reply or updates from the Postal Inspection Service and Labor…After I had the supervisor text him to come back, I got a response with instructions not to return him to work.” Then, PM issued the October 4, 2019 EP 16.7, citing the same grounds as the August 24, 2019 EP 16.7. PM reasoned that because the DRT rescinded the first EP 16.7 based on a procedural error at the time it was issued, an employee safety issue still existed, given the severe nature of C1’s allegation. The Union filed two more grievances in an effort to return Complainant to work. 2021002377 3 On October 16, 2019, PM inquired with upper management about the investigation of C1’s rape allegation, noting that Complainant was still out of work. An Agency official with the Los Angeles Division of the U.S. Postal Inspection Service responded, that the “LASD [Los Angeles County Sheriff’s Department] is handling the investigation and they are actively working it.” The official also stated that she expected an update that afternoon. On October 31, 2019, the LASD arrested Complainant based on C1’s rape allegation. He spent the night in police custody and was released on bail the next day. On December 20, 2019, the Los Angeles District Attorney’s Office issued a statement confirming that it had dropped the charges against Complainant. At the time, in addition to the instant complaint, Complainant still had an open grievance on the matter, as he had not been returned to work. On April 21, 2020, Complainant was scheduled to report to work for training. However, due to a family health emergency, Complainant was unable to return to work until May 7, 2020. PM conducted a fact-finding interview with Complainant on May 15, 2020, regarding his 16.7 EP. Other than the interview with Complainant, PM’s fact-finding report is not in the record, nor are any documents evincing actions taken by the Postal Inspection Service. After its investigation into the instant EEO 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. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS 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). 2021002377 4 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. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, they 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, n. 13; 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, 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. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Claims 1 & 2 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). A prima facie analysis is unnecessary for Claims 1 and 2 because Complainant is unable to establish that the Agency’s proffered legitimate nondiscriminatory reasons for placing him on EP 16.7 on August 24, 2019 and October 4, 2019 were pretext for discriminatory intent. The stated reason for both EP 16.7s - that Complainant was accused of rape by another Agency employee - is not in dispute. Moreover, Complainant was the subject of a criminal investigation by state law enforcement regarding C1’s rape allegation. The Agency’s Motion for Summary Judgment aptly notes that returning Complainant to work prior to the conclusion of the LASD investigation of C1’s allegation, would “contravene both Postal Service policy and the law.” Given the severity of C1’s allegation, and involvement of the LASD, the Agency’s actions in Claims 1 and 2 are supported at least through December 20, 2019, when it was determined that criminal charges would not be filed against Complainant. 2021002377 5 Claim 3 Claim 3 raises the issue of whether the Agency’s legitimate nondiscriminatory reasons for its actions in Claims 1 and 2 became pretext to discriminate against Complainant by prolonging his time off work. Complainant points out that the Agency did not return him to work until April 21, 2020, and PM did not interview him about the EP 16.7 until May 15, 2020. To establish a prima facie case of discrimination based on sex, race, and/or color, a complainant must demonstrate that: (1) they are a member of a protected class; (2) they were subject to an adverse employment action concerning a term, condition, or privilege of employment; and (3) they were treated differently than similarly situated employees outside their protected class, or the circumstances give rise to an inference of discrimination. See e.g. Complainant v. Dep’t of the Treas., EEOC Appeal No. 0120120091 (May 3, 2014), Walker v. United States Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). To be considered “similarly situated,” a comparator employee must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner as the complainant. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (July 14, 2006), citing Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003), other citations omitted. Complainant established that he is a member of a protected class based on his sex, race, and color, and that he suffered an adverse employment action when the Agency prolonged his time off work. However, Complainant’s only proffered comparator was C1 (the employee who accused him of rape), who was not “similarly situated” because, unlike Complainant, she was not accused of rape by another employee. See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) (where a complainant’s “problem conduct” is materially distinguishable from that of the proffered comparator, a difference in severity of disciplinary actions is not an indicator of discriminatory intent); Murray v. Dep’t of Commerce, EEOC Appeal No. 01966705 (Jul. 31, 1995) (employee accused of sexual assault by another employee is not “similarly situated” to the accusing employee, even if the allegation later proves to be false). Complainant’s other arguments amount to bald assertions and speculation, insufficient to establish a question of material fact that would overcome summary judgment. The Commission has previously concluded that in instances where a complainant experiences an adverse employment action because they were falsely accused of sexual assault by a coworker, the complainant cannot establish a prima facie case for sex discrimination where the agency “reasonably believed” the allegation against the complainant was true. Rinehart v. United States Postal Serv., EEOC Appeal No. 01A00243 (Aug. 15, 2000) reconsideration denied EEOC Request No. EEOC 05A01257 (Nov. 29, 2000). Notably, the AJ for Rinehart clarified that the complainant’s acquittal from a criminal sexual assault charge was not sufficient, on its own, to establish that the agency lacked reasonable belief an employee’s allegation of sexual assault, due to differing evidentiary burdens in criminal procedure. 2021002377 6 Here, the Agency’s legitimate nondiscriminatory reason for keeping Complainant off work until April 21, 2020, was its own pending investigation into C1’s rape allegation. The Agency argues that EP 16.7 is intended for “extreme circumstances” while an investigation into the allegation took place, and reasons that “once the investigation was over, Complainant returned to work.” The record indicates that the matter was more likely than not outside of PM’s hands as, in addition to the outside criminal proceeding, the rape allegations had also been referred to the Postal Inspection Service. Without clearance from that entity and upper level management, it appears that PM most likely did not have the authority to bring Complainant back to work.3 Moreover, the record is unclear as to when the Agency became aware of the Los Angeles District Attorney’s decision not to proceed with a criminal prosecution of Complainant. The question in a discrimination case involving an adverse action in response to alleged misconduct is not whether the misconduct occurred, but whether the agency's asserted belief that the misconduct occurred is a pretext for discrimination. Murray v. Dep’t of Commerce, EEOC Appeal No. 01966705 (July 31, 1998), citing Bilby v. Dep’t of Def., EEOC Request No. 01934204 (July 5, 1994). Specifically, when determining whether a temporary ban or bar on a complainant’s access to a workplace is discriminatory, the focus is on whether the agency “subjectively believed” that complainant engaged in the alleged misconduct. Murray, citing Canady v. Dep’t of Transport., EEOC Request No. 01940947 (July 25, 1994) (relevant inquiry was not whether the complainant had engaged in sexual harassment, but whether the agency “subjectively believed” he had). Here, again due to the seriousness of the allegations against Complainant and the involvement of the Inspection Service and higher-level management, the preponderance of the evidence fails to establish that PM’s delay in returning Complainant to work was really motivated by Complainant’s sex, race or color. 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 concluding no discrimination was established as alleged. 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. 3 While Complainant makes much of the fact that PM did not conduct the fact-finding interview with him until after he returned to work in May, it appears most likely that the interview was conducted simply to fulfill the technical procedural requirements of EP 16.7. 2021002377 7 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” 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. 2021002377 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 March 28, 2022 Date