[Redacted], Herbert S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001152 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herbert S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020001152 Hearing No. 461-2019-00186X Agency No. 4V-413-0002-18 DECISION On December 2, 2019, 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 November 5, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Automotive Technician, 08/FF, at the Agency’s Vehicle Maintenance Facility in Baton Rouge, Louisiana. Complainant began working in Baton Rouge on September 16, 2017 and was subject to a 90-day probationary period. Complainant’s first-line supervisor (S1) averred that Complainant was told at 30 days that his work was good but slow, and he needed to pick up the pace. 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. 2020001152 2 On Complainant’s 50th day, S1 met with Complainant and told him that he still needed to work quicker so that S1 could be assured at Complainant’s 60-day evaluation that he would be able to handle the workload in a timely manner. On November 16, 2017, S1 told Complainant he was not going to make probation. Complainant arrived to work on November 18, 2017, worked a few minutes, and then said he was done and left. Complainant never returned to work. Complainant alleged that he was constructively discharged because he “simply could no longer withstand the intolerable conditions and harassment.” Complainant claimed that S1 told him, during the 60-day evaluation, that the facility was not a place for someone with Obsessive Compulsive Disorder (OCD) or a perfectionist, and that Complainant “should go to a dealer.” Complainant asserted that, at the time, he knew he was a perfectionist, but was not diagnosed with OCD. Complainant received a diagnosis later in 2018. Complainant also objected to S1’s requirement that he change fluids in the field. Complainant said this was not the approach when he worked with the Agency in St. Louis. Complainant also alleged that he was not given the proper tools to complete his tasks and that this made Complainant anxious. S1 responded that he was unaware Complainant did not have all of the tools he needed until the 30-day evaluation. Until then, S1 believed Complainant had all necessary tools because he was given a toolbox from a previous employee. After investigation, S1 learned Complainant was not issued the entire box, so S1 ensured Complainant was given a full toolbox. S1 responded that during an evaluation conversation at Complainant’s 50th day, Complainant complained that he was used to a certain workflow when he worked with the Agency in St. Louis which had 70 employees. According to S1, Complainant said he was a perfectionist and wanted to fix vehicles beyond the scope necessary. S1 responded that the smaller facility, with six to seven employees, would not be able to stay current if Complainant wanted to go beyond the scope of his assignments. S1 thought a brand new dealership would be a better fit for Complainant’s approach. S1 also denied knowing that Complainant had OCD or taking any action because he thought Complainant had OCD. S1’s sole concern with Complainant was that he was not completing his tasks in a timely manner. With regard to Complainant’s allegation that he was being required to change fluids on the street in violation of Agency regulations, S1 explained that the Baton Rouge facility had obtained permits that allowed them to dispense fluids, whereas St. Louis may not have had these permits. Further, if Complainant believed the facility was violating Agency regulations, S1 said that Complainant should have followed Agency procedures by lodging a complaint of unsafe work practices or filing a grievance. The record contains statements from two of Complainant’s coworkers who corroborated that Complainant indicated that he was quitting on the morning of November 18, 2017. Ultimately, Complainant did not complete resignation paperwork. 2020001152 3 As of January 9, 2018, Complainant had not returned to work; therefore, S1 sent a letter to Complainant entitled “Absence Inquiry.” S1 noted that Complainant did not call in to report his absence, and requested that Complainant appear for an investigative interview, either in person or over the telephone. Complainant asserted he was out of town and requested the interview be rescheduled. There is no indication in the record that the interview was rescheduled. On March 20, 2018, the Agency sent Complainant a notice that it intended to remove him from Agency employment within 30 days on the bases that he abandoned his position and was absent without leave. On April 2, 2018, Complainant protested the notice of removal and denied that he quit. On May 11, 2018, the Agency removed Complainant from employment. On July 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (perceived OCD) when, on or about March 20, 2018, Complainant was issued a Notice of Removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the investigative file is not complete and management statements were not analyzed for credibility. Complainant claims that while the matter was pending a hearing, the AJ instructed him to withdraw the case and appeal it. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As a preliminary matter, we address Complainant’s argument that he was directed to withdraw his hearing request. In this matter, the AJ held a status conference with the parties on September 23, 2019, and immediately issued a Post Conference Order with Deadlines. The AJ noted that Complainant was required to appear at the conference but did not. In relevant part, the AJ explained that she believed the record to be adequately developed, and that, except for one document, Complainant’s “numerous submissions are not deemed to be material, appropriate ROI supplements.” According to the AJ, neither party “specified a need or desire to obtain information or documentation that is material and not repetitive of the ROI via discovery.” Thus, the AJ concluded no discovery was necessary. The AJ then identified appropriate deadlines for summary judgment motions. Afterwards, Complainant withdrew his hearing request. We do not find that the AJ instructed Complainant to withdrawal his hearing request. Furthermore, we do not find that the investigation into Complainant's complaint was incomplete or improper. 2020001152 4 As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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 Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, S1 explained Complainant was counseled at several points that his performance was unsatisfactory. S1 stated that after he informed Complainant that he did not believe that he would pass his probationary period, he believed Complainant quit. S1 thought Complainant was going to submit a letter of resignation, but because he failed to do so, and his probationary period had expired, S1 had to begin removal proceedings. S1 further affirmed that the Agency had grounds to remove Complainant because he did not come to work for several months. 2020001152 5 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant chose to withdraw his request for a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected class was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Aside from mere allegations and conclusory statements, Complainant has not shown that the Agency's articulated reason for its actions were pretext for discrimination. 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. 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 2020001152 6 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. 2020001152 7 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 3, 2021 Date