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

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2020005500 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020005500 Hearing No. 531-2016-00207X Agency No. 1K-211-0002-16 DECISION On September 9, 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 August 27, 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 Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff 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 Mail Handler at the Agency’s Incoming Mail Processing & Distribution Center in Linthicum, Maryland. On December 31, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and genetic information (size) when on September 11, 2015, he was issued a Notice of Removal, dated 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. 2020005500 2 September 4, 2015, for improper conduct, violation of the zero-tolerance policy, and violation of the joint statement on violence and behavior in the workplace. The Agency accepted the complaint for investigation. The investigative record reflects the following pertinent matters. On August 19, 2015, after a meeting with mail handlers about mistaken labels on containers held by Complainant’s first-line supervisor (Supervisor) and second-line supervisor (Manager), Complainant called Manager “sorry” and/or “a sorry ass.” Report of Investigation (ROI) at 19- 24, 78, 85, 89-90. Complainant did not immediately leave the work floor when Manager instructed him to do so. ROI at 21, 78. After Manager threatened to call the police, Complainant walked with Supervisor to the conference room. ROI at 78. Once there, Complainant said, in reference to Manager, “He’s a Bitch! He’s a Bitch!”. ROI at 78-79, 84, 90. On the way to the work floor to retrieve his things, Complainant yelled, “Manager is a Bitch-Bitch Ass!”. ROI at 79, 84, 90. Complainant next punched a hole in the wall and said, “[Manager] is a Bitch-Fuck Him!”, as he was escorted out of the building. ROI at 80, 90. Complainant stated that he instead said, “This is bullshit,” on the way to the conference room with Supervisor. ROI at 23. He did not remember exactly what he said to himself while he was being escorted out of the building but acknowledged taking “a swipe” at a wall. ROI at 23-24. As a result of the confrontation, management placed Complainant on Emergency Placement status. Id. Complainant attended a Pre-Disciplinary Interview on August 24, 2015, with his union representative, Supervisor, and another supervisor (Supervisor 2) to discuss what happened on August 19, 2015. ROI at 25, 79. At that meeting, Supervisor explained that the Agency would be recommending his removal. ROI at 79. On August 31, 2015, Supervisor recommended removing Complainant to the Labor Manager. ROI at 83-86. Supervisor issued the removal notice because Complainant had used profanity, failed to follow instructions, and punched a hole in a wall. She also noted that Complainant had received prior discipline, including a 10-day suspension for Failure of Obedience to Orders and a 14-day suspension for a violation of the Workplace Violence Zero Tolerance Policy. 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. When Complainant did not object, the AJ assigned to the case granted the Agency’s April 24, 2017, motion for a decision without a hearing and issued a decision without a hearing on August 21, 2020. The AJ found that the Agency had legitimate, nondiscriminatory reasons for Complainant’s termination. She found the Agency’s actions were based on Complainant’s confrontational, disrespectful, and violent conduct in the workplace which violated the Agency’s Zero Tolerance Policy. 2020005500 3 Furthermore, the AJ concluded, Complainant had not proffered any evidence to counter the Agency’s legitimate, nondiscriminatory reasons to suggest his race and/or gender played any role in the Agency’s decision to terminate him. As to Complainant’s assertion that he was discriminated against based on his size, in violation of GINA, the AJ found that Complainant cannot establish a prima facie case of genetic information discrimination because he failed to show that he is entitled to protection under the statute, that he suffered an adverse employment action, and that the adverse employment action presents an inference of discrimination on the basis of his genetic information. After viewing the evidence in the light most favorable to Complainant, the AJ held that he did not prove, by a preponderance of the evidence, that he was discriminated against on the basis of race, gender, or genetic information, when he was issued a Notice of Removal on September 11, 2015. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant takes issue with what he perceives to be inaccuracies in the AJ’s decision. For example, he states that Supervisor lied when describing what was said on the work floor. He also denies making the profanity-laced threats on the work floor. He asks that these items be investigated to ensure a fair judgment. The Agency contends that the AJ’s decision should be upheld as Complainant fails to make a prima facie case of discrimination under GINA or show that the Agency’s legitimate, nondiscriminatory reasons for its action are pretextual. It also points out that Complainant did not submit an affidavit in the investigation or file an opposition to its Motion for a Decision Without a Hearing. Because there are no genuine issues of material fact, the Agency asks that we uphold the AJ’s decision in its favor. ANALYSIS AND FINDINGS Summary Judgment 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 Chap. 9, § VI.A. (explaining that the de novo 2020005500 4 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 did not submit any reply when the Agency moved for summary judgment. On appeal, Complainant takes issue with some of the stated reasons for his termination. However, Complainant did not complete an affidavit during the investigation and cites to no evidence to support his assertions. Therefore, we find that Complainant failed to show that there was a genuine issue of material fact in this case. The Commission thus finds that the AJ's grant of summary judgment was appropriate. Discrimination Based on Genetic Information Complainant claimed discrimination based on genetic information in violation of GINA, which prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic information means information about: (i) an individual’s genetic tests; (ii) the genetic tests of that individual’s family members; and (iii) the manifestation of a disorder in family members of such individual (family medical history). 29 C.F.R. § 1635.3(c). 2020005500 5 Complainant alleged that the Agency discriminated against him because of his size, but he has not presented any allegations or facts regarding genetic tests, the genetic tests of his family members, or his family medical history. As a result, the Commission finds that the AJ properly found that Complainant did not make out a prima facie case of discrimination based on genetic information. See Ward B. v. U.S. Postal Serv., EEOC Appeal No. 0120180526 (Apr. 23, 2019). Disparate Treatment 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, he 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. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Assuming, arguendo, that Complainant established a prima facie case of discrimination on the bases of race and sex, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. Namely, the Agency terminated Complainant for violating Agency regulations and its Zero Tolerance Policy when he spoke in a loud, agitated manner; used profanity in the workplace; refused to leave the work floor when asked; and punched a hole in the wall as he was escorted off the premises on August 19, 2015. As the Agency has articulated legitimate, nondiscriminatory reasons for its action, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). In the instant matter, Complainant did not submit an affidavit nor offer any evidence that the Agency’s reasons were pretext for discrimination. Accordingly, we find that Complainant has failed to show that he was discriminated against as alleged. 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. 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 2020005500 6 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” means the national organization, and not the local office, facility or department in which you work. 2020005500 7 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 March 8, 2022 Date