[Redacted], Leisa C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionSep 28, 2021Appeal No. 2021001865 (E.E.O.C. Sep. 28, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leisa C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021001865 Hearing No. 430-230-0183-17 Agency No. 4K-230-0183-17 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 9, 2020, 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 City Letter Carrier at the Agency’s Richmond-Regency Branch in Richmond, Virginia. On October 26, 2017, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discriminatory harassment based on race (African American) and in reprisal for prior protected EEO activity2 when: 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 had filed several prior complaints including EEO complaint (DC-0353-17-0204-I-1) filed on May 23, 2017, approximately one month before 2021001865 2 1. on June 29, 2017, Complainant was issued a letter or warning for failure to follow instructions; 2. on July 7, 2017, Complainant was issued a 7-day suspension for failure to follow instructions; 3. on July 14, 2017, Complainant was issued a 14-day suspension for failure to follow instructions; and 4. on July 19, 2017, Complainant was issued a second 14-day suspension for unsatisfactory performance. Following the completion of the report of investigation of the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On June 29, 2018, the Agency filed a motion for partial dismissal of Complainant’s claim of disability discrimination because Complainant withdrew this claim. On July 3, 2018, the AJ granted the dismissal of discriminatory harassment based on disability and noted that the only bases raised were race and retaliation. On October 30, 2018, the Agency issued a motion for summary judgment. After receiving responses from both the Agency and Complainant, the AJ issued a decision by summary judgment in favor of the Agency. On December 9, 2020, the Agency issued a final order implementing the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues in pertinent part, that the Agency’s motion for summary judgment improperly identified Complainant’s initial complaint as alleging a hostile work environment claim based on race. Complainant denies having ever raised a hostile work environment claim and asserts that she only raised a disparate treatment claim. Therefore, Complainant argues that because the Agency misstated her claim, the Agency did not request dismissal of her disparate treatment claims, and therefore, the AJ had no valid basis to grant the Agency’s motion for summary judgment. Complainant was issued the June 2017 letter of warning. Complainant identified the management officials named in the instant complaint as the responsible management officials in prior complaints. 2021001865 3 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). 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. 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 her favor. On appeal, Complainant has clarified, through counsel, that she only intended to raise claims of disparate treatment. Complainant argues that the Agency mischaracterized her claim as one solely of discriminatory harassment in its motion for summary judgment and, as such, its motion should not have been granted. However, we conclude that the AJ provided both disparate treatment and discriminatory harassment analyses in her November 30, 2020 decision.3 Accordingly, we find the AJ adequately addressed Complainant’s disparate treatment claims. 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 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. 3 We note that our regulations permit an AJ to enter a decision by summary judgment sua sponte even in the absence of a motion by one of the parties. 29 C.F.R. § 1614.109(g)(3). 2021001865 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. 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). Our independent review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for its actions. Letter of Warning (Claim 1) Complainant’s immediate Regency Branch Supervisor (RBS1), another Regency Branch Supervisor (RBS2), and the Regency Branch Manager (RBM) acknowledged that Complainant received the letter of warning. RBS1 stated that she issued the letter because Complainant failed to report to work as instructed. RBS1 further stated that she was influenced by RBM in the decision to issue the letter, even though RBM denied any involvement. Nevertheless, RBM explained that she had instructed Complainant to report to work on June 29, 2017, but Complainant failed to do so. RBM acknowledged that June 29, 2017 was Complainant’s off day and she had a scheduled eye appointment. However, RMB stated that she instructed Complainant to return to work after her eye appointment, but Complainant did not follow this instruction. A copy of the June 29, 2017 Letter of Warning states that Complainant was charged for improper conduct (failure to follow instructions). Specifically, the letter states that Complainant was instructed to report to work on June 23, 2017 and June 24, 2017, but she failed to do so. 7-Day Suspension (Claim 2) RBS2 stated that she issued the suspension because of Complainant’s prior corrective action, and RBS2 noted that RBM concurred with her decision. RBM explained that Complainant requested 3.5 overtime hours for her route, but Complainant was only approved 1 hour overtime for her route and 1 hour overtime for another “split” route which RBM noted was two minutes away from the post office. However, RBM explained that Complainant used 1 hour 41 minutes of overtime without requesting approval to deliver mail beyond the approved 1 hour of overtime. Additionally, RBM indicated that Complainant failed to complete her split route at all. A copy of the July 6, 2017 Notice of Suspension reflects that Complainant was charged with failure to follow instructions and unauthorized overtime. The notice indicates that Complainant worked an additional 41 minutes of overtime she was not authorized to use. The notice further indicates that Complainant did not complete her assignment on her split route. The notice also states that Complainant’s pace of delivery decreased when she was not being directly observed by management, and her pace accelerated while under observation. 2021001865 5 14-Day Suspension (Claim 3) RBS2 acknowledged that she issued Complainant the suspension because Complainant did not report to work as scheduled and used unauthorized overtime. RBM concurred. RBM explained that she instructed Complainant to return to work after her doctor’s appointment, albeit scheduled on her off-day, however, Complainant failed to do so. A copy of the July 14, 2017 Notice of No Time Off 14-Day Suspension indicates that Complainant was charged with failure to follow instructions. The notice states that Complainant failed to report to work on July 11, 2017, despite being instructed to report. The notice further states that Complainant was approved for .50 hours of overtime on July 12, 2017. However, Complainant used 1 hour and 1 minute of overtime. Despite the overtime, the notice indicates that Complainant did not complete one of her assigned routes. 14-Day Suspension (Claim 4) RBS2 stated that she issued the suspension for unsatisfactory performance and RBM concurred. Both RBS2 and RBM explained that Complainant bumped into the back of a parked postal vehicle while delivering mail. Following an investigation and pre-disciplinary interview, RBM explained that Complainant was issued a suspension. A copy of the July 19, 2017 Notice of No Time Off 14-Day Suspension indicates that Complainant was charged with unsatisfactory performance (failure to follow safety rules and regulations). The notice states that Complainant’s foot slipped off the break while she was delivering mail which resulted in her hitting a parked car. The notice further states that Complainant’s foot slipped because a dog ran in front of her vehicle which caused the accident. The notice also reflects that Complainant’s prior disciplinary matters were taken into consideration in the decision to issue the 14-day suspension. While RBS1, RBS2, and RBM acknowledged that Complainant had filed prior EEO complaints, RBS1, RSC2, and RBM denied that Complainant’s prior protected activity or race factored into their decision to issue Complainant the disciplinary actions at issue. 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 retaliation for Complainant’s race or prior protected EEO activity. CONCLUSION The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2021001865 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). 2021001865 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 September 28, 2021 Date Copy with citationCopy as parenthetical citation