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

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020000591 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kandi M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000591 Agency No. 1G731003517 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an August 19, 2019 Final Agency Decision (“FAD”) 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Bulk Mail Technician, P-07, at the Oklahoma Processing and Distribution Center (“P&DC”) located in Oklahoma City, Oklahoma. On January 9, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when: 1. On or about August 24, 2017, her request for a change of schedule was denied, 2. On September 1, 2, 15, 16, and 17, 2017, she was charged with being absent without official leave (“AWOL”), and, 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. 2020000591 2 3. On October 21, 2017, she was issued a Notice of Removal for failure to maintain a regular attendance record. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant initially requested a hearing, however, the AJ denied her hearing request on timeliness grounds, and remanded the matter for a FAD. In accordance with the AJ’s order, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record includes but is not limited to the following facts: On August 18, 2017, Complainant and the Agency entered into a Pre-Arbitration Grievance Resolution, where the Agency agreed to replace an April 11, 2017 Notice of Removal for Failure to Maintain Regular Attendance, in Complainant’s record with a time served suspension. Management also exercised its discretion and placed Complainant on the “Deems Desirable” list, which meant, under Section 513 of the Agency’s Employee and Labor Relations Manual (“ELM”), that she was required to produce documentation to support any absences of 3 days or less, upon Management’s request. The Agency called Complainant back in to work and scheduled her for Tour 3 (4:00 pm through 12:30am) with Mondays and Tuesdays off. Complainant failed to report for several days. However, her second level supervisor (“M1,” Asian, Male), the Tour 3 Manager, Distribution Operations, EAS-24, granted her three additional days when the Labor Relations Officer explained that they contacted Complainant and she was having difficulty finding a babysitter. Upon her return, Complainant submitted a temporary schedule change request to her first level supervisor, (“S1,” Caucasian, Female), a Supervisor, Distribution Operations, EAS-17. The request, which included Saturday and Sunday off for the next month, explained that Complainant did not yet have a childcare arrangement that was compatible with her new schedule, as her current childcare provider was only available Monday through Friday. S1 denied the request. Complainant also requested time off on September 1 and 2, 2017, which S1 denied, noting that Complainant had only been back for a week. S1 also denied Complainant’s leave request for September 15, 16, and 17, 2017, even though Complainant saw that the maximum number of employees had not yet requested off for those dates. Regardless, Complainant called off work on each of the five dates she was denied leave. As Complainant was on the Deems Desirable list, S1 requested documentation to support the absences. When Complainant failed to provide it, S1 changed the September 1 and 2, 2017 absences, which she had recorded as leave without pay (“LWOP”) pending documentation, to AWOL. Likewise, and when it was not provided, S1 recorded the absences on September 15, 16, and 17, 2017 as AWOL. On October 11, 2017, S1 met with Complainant and a member of the Union to conduct an investigative interview regarding the five AWOLs Complainant received during her first month back to work, as well as several absences and a late arrival in October 2017. 2020000591 3 Complainant explained that she was given short notice about her return to work and she still needed to “get situated.” She also asserted that she was not required to provide documentation of the absences at issue. The Notice of Removal for Failure to Maintain Regular Attendance and AWOL, issued October 21, 2017, deemed these explanations insufficient to excuse the AWOLs in light of Agency policy, Complainant’s placement on the Deems Desirable list, and her record of progressive attendance-related disciplinary actions, including the time served suspension dated April 11, 2017. Complainant’s final day in pay status was November 16, 2017. Although the Notice of Removal did not include a concurring official, both M1 and Complainant’s third level supervisor, was the Lead Manager, Distribution Operations, EAS-25 (“M2,” African American, Male) testified that they agreed with S1’s decision. The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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, (“EEO MD-110”) 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 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. 2020000591 4 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 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As an employer, the Agency is entitled to make its own business judgments. Absent evidence of discriminatory animus toward complainant, the Commission will not second guess the agency's business judgment in these matters. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981) (Agencies have "broad discretion" to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility). To make a determination of discrimination, one must look at the motivation of the decision maker as opposed to his business judgment. Wrenn v. Gould, 808 F.2d 493, 503 (6th Cir. 1987). The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979) see, e.g. Clinton M. v. Dep’t of the Army, EEOC Appeal No. 0120172520 (June 14, 2018) (complainant, who did not dispute that he provided poor customer service on multiple occasions, was unable to establish pretext where the agency cited its operational goals and policy of patient safety and minimizing patient frustration, as its legitimate nondiscriminatory reason for transferring the complainant, and the complainant could not show that the transfer was unreasonable with respect to business judgment), see also Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) recon. den., EEOC Request No. 05A20020 (Dec. 28, 2002) (complainant argument that the agency's “business-based action, taking away hard earned benefits gained over a period … [was] morally reprehensive” did not establish pretext because complainant did not show the agency acted unreasonably with respect to business judgment). Here, the Agency’s legitimate nondiscriminatory reason for its actions arose from an operational need for reliable staffing, given the time sensitive nature and volume of work, and for the morale of employees who are negatively impacted when the facility is short staffed. The record indicates that the Agency assigned Complainant to work Tour 3, including weekends, out of operational need, given, among other things, the nature of the Bulk Mail Tech position, the practice of single staffing on machines, and the schedule restrictions of other employees. The Agency also provides the relevant portion of the collective bargaining agreement (“CBA”) between the Union and the Agency and an array of citations from its Employee and Labor Relations Manual (“ELM”), demonstrating that Complainant violated Agency policies and protocol with respect to attendance and progressive discipline. 2020000591 5 For Claim 1, S1 stated that Management was not approving any schedule changes at that time. M1 testified that Complainant was one of 3 or 4 other people requesting schedule changes, and that if he approved a schedule change for one employee he would have to do so for all, so he opted to deny all requests. For Claim 2, Complainant was recorded as AWOL because she did not provide documentation of her absences. It is undisputed that Complainant was on the Deemed Desirable list, and contrary to her assertions during the investigative interview, it was within S1’s supervisory discretion to record Complainant as AWOL. ELM 513.365 states, "Failure to Furnish Required Documentation, If acceptable substantiation of the Incapacitation is not furnished, the absence may be charged to annual leave, LWOP or AWOL.” As for Claim 3, the Agency shows that in context, Complainant’s October 21, 2017 Notice of Removal was the appropriate response to Complainant’s five AWOLs in September 2017 because it was “next step” in progressive discipline. Complainant’s disciplinary record included the time served April 11, 2017 Suspension for Failure to Maintain Regular Attendance, a December 22, 2016, 14-Day Paper Suspension for Failure to Maintain Regular Attendance/AWOL and an October 26, 2016, Letter of Warning for Failure to Maintain Regular Attendance. Both the ELM and the CBA support that removal is the next step after a 14 day suspension the same year. During the relevant time frame, it appears that Complainant was simply unable to consistently work her assigned schedule due to life circumstances. M1’s testimony supports Complainant’s account that she was not prepared to return to work, as he notes that she did not return after she was called back to work until nearly a week later, and only after the Agency’s Labor Relations Office contacted her. Complainant’s explanations that she needed to “situate herself” after receiving short notice to return to work, and that she was unable to arrange childcare are sympathetic. However, Complainant has not shown that the Agency’s responses when she requested a temporary schedule change, and called out five times after unsuccessfully requesting leave, ultimately resulting in her removal, were pretext for discrimination based on race and sex. Rather, the agency acted consistent with its policies and operational need for reliable staffing of a Bulk Mail Tech Tour 3 who can work weekends. Complainant did not show that the Agency’s actions were unreasonable in terms of business judgment, and thus, without more, Complainant's argument that the Agency's articulated reason was a pretext for discrimination is unproven. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision to dismiss Complainant’s complaint. 2020000591 6 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). 2020000591 7 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 19, 2021 Date