[Redacted], Jules H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2020001723 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jules H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020001723 Agency No. 1K-221-0040-19 DECISION On December 13, 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 8, 2019,2 final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented concerns whether the Agency subjected Complainant to discrimination based on reprisal when management issued him a letter of warning. 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 received the Agency’s final decision on November 14, 2019. 2020001723 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, 06/O, at the Agency’s Northern Virginia Processing and Distribution Center in Merrifield, Virginia. On June 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on or about April 7, 2019, he was issued a letter of warning for failure to follow instructions for an incident that occurred on February 10, 2019.3 At the conclusion of the investigation into claim 1, the Agency provided Complainant with a copy of the report of investigation (ROI) 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) in favor of the Agency.4 In finding no discrimination, the Agency determined that Complainant’s first-level supervisor (S1) had a legitimate, nondiscriminatory reason for issuing Complainant the letter, as the record established that Complainant violated the Agency’s rules by failing to follow his supervisor’s instructions and making discourteous statements to her, such as “go to hell” and “if you know what [is] good for you, I would leave me alone.” The Agency emphasized that Complainant’s second-level supervisor (S2) was the individual who instructed S1 to call the Postal Police to escort Complainant from the premises. Because Complainant did not provide an affidavit to the EEO investigator, the Agency had to construct Complainant’s arguments regarding pretext using the EEO Counselor’s Report and Complainant’s formal EEO complaint. Having reviewed these documents and the ROI, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged because Complainant could not show that S1’s articulated reason was pretext for discrimination. This appeal followed. CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted any contentions on appeal. 3 In his formal complaint, Complainant also claimed that management provided inaccurate information to the Postal Inspection Service in reprisal for his prior EEO activity. We note that the Agency dismissed the claim for failure to state a claim and for constituting a collateral attack on another proceeding. As Complainant has not disputed the Agency’s dismissal on appeal, we shall limit our review to claim 1. 4 We note that the Agency addressed the merits of the claim even though the Agency found Complainant’s claim to be moot because Complainant’s grievance regarding the letter had been resolved by settlement agreement. While we acknowledge the Agency’s finding of mootness, we will address the merits of the claim. 2020001723 3 STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS For Complainant to prevail on his claim of disparate treatment, he 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. Co. 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. Texas Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the Agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency has articulated a legitimate, nondiscriminatory reason for issuing him a letter of warning. As reflected in the letter, S1 decided to issue Complainant a warning because, on February 10, 2019, Complainant failed to follow S1’s instructions and made discourteous statements to her, such as, “go to hell” and “if you know what [is] good for you, I would leave me alone.” As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. See, e.g., Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2020001723 4 Due to Complainant’s failure to submit an affidavit, we must construct his offer of pretext using other documents contained in the complaint file, such as his formal complaint and the EEO Counselor’s Report. In those documents, Complainant alleged that S1 gave him the warning because he had disclosed violations of laws, rules, and regulations. Complainant also accused S1 of intentionally obstructing the EEO process; lying to the Postal Inspection Service; engaging in criminal conduct; and engaging in prohibited personnel practices such as, exercising improper influence to improve S1’s chances of promotion, making false statements, and treating employees disparately. As an initial manner, we note that the Commission does not have jurisdiction over allegations of reprisal for disclosing prohibited personnel practices and criminal wrongdoing. See Davis v. Dep’t of Homeland Sec., EEOC Appeal No. 01A53256 (April 7, 2016) (affirming agency’s dismissal of complaint that alleged reprisal related to whistleblower activities and prohibited personnel practices); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123451 (Nov. 7, 2014) (affirming agency’s dismissal of claim that alleged matters related to criminal wrongdoing). Therefore, even if S1 issued Complainant the letter because of Complainant’s disclosures, Complainant still cannot prevail on his claim of reprisal based on these disclosures. We also considered Complainant’s remaining offers of pretext regarding the issuance of the letter; however, we find that Complainant cannot persuasively show that the Agency subjected him to discrimination. In this regard, while we acknowledge that Complainant has alleged that S1 obstructed the EEO process and subjected employees to disparate treatment based on reprisal, presumably by asking the Postal Police to remove him from the premises, we note that S1 did not make the decision to call the Postal Police. Rather, the record reflects that S2 directed S1 to call the Postal Police after witnessing Complainant’s behavior on February 10, 2019. Even if we assume arguendo that S1 treated Complainant’s male colleague (C1) more favorably by not calling the Postal Police on that individual, we find that Complainant was not similarly situated to C1 because the record clearly shows that S1 did not make the decision to call the Postal Police. Based on the foregoing, we conclude that the Agency properly found no discrimination on the merits of claim 1. 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. 2020001723 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). 2020001723 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation