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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021001453 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Israel F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001453 Agency No. 4G-720-0025-20 DECISION On November 4, 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 October 5, 2020, final decision 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Little Rock Post Office - Brady Annex in Little Rock, Arkansas. On February 13, 2020, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him based on race (African American) and sex (male) when, on October 5, 2019, Complainant was placed on Emergency Placement.2 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 During counseling Complainant raised an additional matter regarding being put “off the clock” for cursing at the station manager. The Agency did not include this claim in its accepted claims to be investigated. Moreover, the Agency’s final decision is silent on the matter. We acknowledge that in the EEO Counselor’s Report, the Agency took Complainant’s statement on 2 2021001453 After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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 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. See 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, non-discriminatory 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). On October 5, 2019, a Postmaster (race - unknown, sex - female), who was serving as an examiner, accompanied Complainant on his route for a route examination. The Postmaster testified that she and Complainant had just finished a “park and loop” on the route and were headed back to the long life vehicle (LLV). Complainant got in the front of the vehicle and the Postmaster entered the LLV through the back. The Postmaster had just closed the back door to the LLV, and had not yet gotten to the jump seat, when Complainant began moving the LLV. The Postmaster stated that she was thrown to the back of the LLV, landed on her back against the rear door, and slid all the way to the door, hurting her back and arm. the matter and received a response from the station manager. Complainant does not address the issue in his appeal. Given these circumstances, we will not further consider this matter herein. 3 2021001453 The Postmaster stated that, when she yelled at Complainant to stop the LLV, he stopped, and she was able to get into the jump seat and buckle in. Complainant then continued his route. Meanwhile, the Postmaster telephoned her team leader to pick her up prior to finishing the route because she said she was concerned for her personal safety. The Postmaster’s team lead came and picked her up. On October 9, 2019, Complainant was placed on Emergency Placement in Off-Duty Status as a result of the incident described above. RMO1 (African American, male) who was also Complainant’s acting supervisor and RMO2 (African American, female) provided statements during the investigation. RMO1 testified that he was not involved in the determination to place Complainant on Emergency Placement, and that the decision was RMO2’s decision to make. RMO2 confirmed in her testimony that it was her decision to place Complainant on Emergency Placement because Complainant had a Postmaster in the back of his LLV and put her safety at risk. RMO2 also testified that Complainant was informed that the Postmaster had sustained bruises on her back due to him pulling off without waiting and checking to make sure that the Postmaster had gotten into her seat and buckled her seat belt. RMO1 and RMO2 both testified that Complainant’s race and sex did not factor into the action taken against Complainant. Therefore, we find the Agency articulated a legitimate, non-discriminatory reason for placing Complainant in Emergency Placement - his unsafe operation of the LLV which resulted in injury to the Postmaster. The Agency cited Section 651.4 of its Employee and Labor Relations Manual, which includes the circumstances when an employee may be placed in an emergency off-duty status. One such instance is when the employee “[f]ails to observe safety rules.” The Agency having articulated its legitimate nondiscriminatory rationale, the burden now shifts to Complainant to demonstrate that the Agency’s articulated, legitimate, nondiscriminatory rationale was pretext for discrimination. On appeal Complainant did not make any statements related to the matter, and only requests a copy of applicable laws cited in the Agency’s final decision. We note, all of the laws cited are readily available for complainants to access on EEOC’s website, as well as many other public sources of information. Complainant failed to prove, by a preponderance of the evidence, that the Agency’s articulated rationale was pretext designed to mask discrimination against him on the bases of his race and sex. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding no discrimination. 4 2021001453 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). 5 2021001453 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 June 7, 2021 Date