[Redacted], Hung B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020001993 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hung B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020001993 Hearing No. 440-2019-00255X Agency No. 1J-607-0049-19 DECISION 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 December 19, 2019, final order concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Senior Distribution Operations Manager at the Agency’s Cardiss Collins Processing and Distribution Center in Chicago, Illinois. On May 7, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (Black) and in reprisal for prior protected EEO activity2 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 The record indicates that Complainant filed prior EEO complaints (Agency Nos. 1J-607-0095- 16; 1J-607-0039-17; and 1J-607-0094-18) and identified the same responsible management official in those prior complaints as the responsible management official in the instant complaint. 2020001993 2 when on February 28, 2019, Complainant was issued a Proposed Letter of Warning in Lieu of a 14-day suspension. Following the completion of the report of investigation and issuance of the notice of right to request a hearing before an EEOC Administrative Judge (AJ), Complainant timely requested a hearing. However, on September 10, 2019, the AJ issued a notice of intent to issue a decision without a hearing. After receiving responses from Complainant and the Agency, the AJ issued a decision by summary judgment in favor of the Agency. On December 19, 2019 the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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. 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. While Complainant generally asserts on appeal that there were material facts in dispute, he has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco 2020001993 3 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. See Texas Department of Community 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for issuing Complainant the disciplinary action at issue. Complainant’s supervisor (S1)3 was the responsible management official who issued Complainant the proposed Letter of Warning (LOW) in lieu of a 14-day suspension. S1 issued the discipline after he received a decision on October 30, 2018, from this Commission finding that: (1) Complainant had sexually harassed an employee between May 2013 and June 2014, thereby creating a hostile work environment, and (2) Complainant retaliated against the employee on June 23, 2014 when he removed the employee from her detail after she complained about being sexually harassed by him. S1 clarified that the Commission’s ordered the Agency to consider disciplinary action, notify the Commission of its decision, and provide an explanation to the Commission if the Agency decided not to impose any additional discipline against Complainant. S1 explained that he consulted with the District Manager, Human Resources, and Managing Counsel before he issued the proposed LOW. Regarding Complainant’s prior protected EEO activity, S1 acknowledged that he was the responsible management official named in Complainant’s prior complaints. However, S1 denied that Complainant’s prior EEO activity or his race was a factor in his decision to discipline Complainant. 3 The record indicates that S1 was Complainant’s “Form 50 supervisor” even though Complainant had been placed on a detail at the Chicago International and Military Service Center since April 2018. 2020001993 4 Complainant’s asserted that there were other employees who engaged in similar misconduct but who were not disciplined by the Agency. However, the S1 denied being aware of any similarly situated employees found to have committed discriminatory acts who were not subsequently disciplined by management. The record includes a copy of the Commission’s prior decision and order. In pertinent part, the Commission’s order stated: The Agency shall reconsider the disciplinary action issued against the Manager found to have subjected Complainant to sexual harassment and unlawful retaliation. The Agency shall report its decision. If the Agency decides not to modify the disciplinary action already issued, it shall set forth the reason(s) for its decision not to impose any additional discipline. See Lelha T. v. U.S. Postal Service, EEOC Appeal No. 0120172533 (Oct. 24, 2018). A copy of the January 10, 2019 proposed LOW in lieu of a 14-day suspension indicates that Complainant was “found by the [EEOC] to have sexually harassed and retaliated against [an employee].” The record indicates that on February 21, 2019, the Agency issued a Letter of Decision on the proposed LOW in lieu of a 14-day suspension and affirmed the proposed disciplinary action. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race and reprisal for prior protected EEO activity. CONCLUSION Complainant failed to prove that the Agency violated Title VII as alleged. The Agency's final order adopting the AJ’s summary judgment decision concluding no discrimination or unlawful retaliation was established is AFFIRMED. 2020001993 5 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 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). 2020001993 6 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. 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 January 22, 2021 Date