[Redacted], Lloyd E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2021

Appeal No. 2020004071 (E.E.O.C. Nov. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lloyd E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004071 Hearing No. 520-2019-00611X Agency No. 4B-040-0016-19 DECISION On July 7, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 24, 2020, final order 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 order adopting the AJ’s decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian at the Agency’s Suncook and Epsom facilities in the Northern New England District in Laconia, New Hampshire. On June 17, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and age (61) when: 1. on April 9, 2019, Complainant was issued a Letter of Warning (LOW); 2. on April 1, 2019, Complainant’s pay was docked; 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. 2020004071 2 3. on April 1, 2019, Complainant’s personnel documents had been falsified and altered; and 4. on April 1, 2019, Complainant was charged Absent Without Leave (AWOL). The investigative record reflects the following pertinent matters relating to the subject claims. The following individuals were listed as responsible management officials (RMO): the Officer in Charge (OIC) (female, Caucasian, under 40), the Manager of Post Office Operations (Manager) (female, Caucasian, over 40), and the Supervisor of Customer Service (Supervisor) (male, Caucasian, over 40). Complaint File (CF) at 92-93. On April 1, 2019, Complainant asserted that the OIC, the Manager, and the Supervisor altered his approved leave, docked his pay by 1.17 hours, and then charged him as Absent Without Leave (AWOL). Complainant noted all this occurred despite prior approval from the Postmaster for approved leave. CF at 119-22. The Postmaster was not present on that day to confirm his approval and an approved leave slip was not found. Id. at 214. The OIC consulted with the Manager, who concurred, in charging Complainant AWOL on April 1, 2019. CF at 161. The OIC asserted that Complainant was charged with the AWOL because on the day in question he clocked out early without permission. Id. at 161 and 207. The OIC stated that when Complainant returned to work a few days later, he claimed he had approved sick leave for that day. The Manager consulted with the Supervisor regarding the matter, and it was agreed that Complainant would be charged as AWOL until management received appropriate documentation otherwise. CF at 188. The Postmaster later verified that he approved the leave and stated that he sent notification of such approval by phone but stated that the OIC did not see the leave form. CF at 214. Once the appropriate document was received, about four days after the incident, Complainant’s leave was altered to reflect the appropriate leave. CF at 128. On April 9, 2019, Complainant stated that the OIC asked to meet in her office. Complainant asserted that he was told that the meeting could result in discipline. CF at 112-15. Complainant invoked his Weingarten rights and requested a union steward to be present. CF at 116. Complainant asserted that following his request, he was issued a Letter of Warning (LOW) for Failure to Follow Instructions. The OIC stated that she issued Complainant the LOW after he refused her instructions to go to her office to discuss his work performance. The OIC noted that instead of meeting with her, Complainant clocked out for the day and that resulted in him receiving the LOW, not because of his protected bases or requesting union representation. CF at 156. As part of a union grievance, the LOW was later rescinded and removed from Complainant’s personnel file. CF at 116. During the investigation, Complainant argued that the claims were a culmination of an ongoing pattern of harassment from the OIC going back to August 24, 2018. CF at 115. 2020004071 3 At the conclusion of 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). Complainant timely requested a hearing. Following a pre-hearing conference, the Agency, on March 10, 2020, filed a Motion for Summary Judgment. Complainant timely responded, with the Agency submitting a counter- response. On June 22, 2020, the AJ determined that there were no genuine issues of material face, and issued a Decision and Order Granting Agency’s Motion for Summary Judgment. The AJ determined that Complainant had failed to provide any actual evidence of age or sex discrimination and determined that those harassment claims failed. Regarding claim 1, the AJ noted that the LOW was rescinded and removed from Complainant’s file, but that contrary to Complainant’s arguments, did not demonstrate that he was harassed by the OIC or management, when it was initially issued. The LOW was a routine managerially issued admonishment, and Complainant failed to demonstrate that it was issued as a result of racial animus. Regarding claims 2 through 4, the AJ determined that the Agency had provided legitimate, nondiscriminatory reasons for its actions and that Complainant had failed to demonstrate that such reasons were pretext for discrimination or retaliation. On June 24, 2020, the Agency issued a final decision adopting the AJ’s determination of no discrimination. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, notes that the appeal only pertains to allegations of discrimination and harassment based on race. Complainant asserts that the AJ erred in his decision and that there were clearly genuine issues of material fact that were not addressed. For example, Complainant asserts that the harassment occurred over the course of several months, and yet the AJ found that the claims involved incidents that only arose over a two-day period. In response, the Agency asserts that the AJ properly found that Complainant was not discriminated against. The Agency requests that the Commission affirm its final decision adopting the AJ’s determination of no discrimination. 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 2020004071 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Preliminary Matters As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Id. at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision regarding bases of age and sex and, accordingly, we will not review the complaint under those protected classes. To the extent that Complainant is raising a new claim of hostile work environment stemming back to August 24, 2018, as indicated in his appeal, we note that Complainant listed the date “2018-2019” in his Formal Complaint. The Agency accepted the formal complaint for investigation and listed the claims as enumerated above. CF at 36. These were the incidents that were addressed by the AJ’s decision. We also note that the Commission's regulations allow a complainant to amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. Additionally, after requesting a hearing, a complainant may file a motion with the EEOC Administrative Judge to amend a complaint to include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106(d). Complainant failed to raise his claim of hostile work environment with the Agency prior to the conclusion of the investigation or with the AJ during the hearing process. Therefore, we find that it would be inappropriate for the Commission to address his allegation of hostile work environment stemming from August 24, 2018, at this stage. Singleton v. Soc. Sec. Admin., EEOC Appeal No. 01984784 (Apr. 13, 2001). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. 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. 2020004071 5 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in his opposition to the motion for summary judgment and on appeal, we find that there exists no genuine issue of material fact; that the record is adequately developed; and that no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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. 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. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim 1, the OIC detailed that she issued Complainant the LOW because he refused to meet in her office after she had specifically requested his presence to discuss performance issues. Additionally, he clocked out early for the day without prior permission. We note that Complainant argued that he was issued the LOW based on his race and invoking his Weingarten rights.2 2 We note that a claim involving an issue relating to union representation (e.g. denial of Weingarten Rights) is outside of the Commission’s jurisdiction. See Spiwak v. U.S. Postal Serv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999). Accordingly, claims of Weingarten violations should be raised through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority, not the EEO process, as this is outside of the Commission’s 2020004071 6 Based on the record, there is no evidence presented that the LOW was issued with discriminatory animus, and Complainant has failed to demonstrate that the provided legitimate, nondiscriminatory reasons were pretext for discrimination. Regarding claims 2 through 4, the Agency also provided legitimate, nondiscriminatory reasons for its actions. In this matter, there was clear confusion as to whether Complainant had approved sick leave from the Postmaster. The Postmaster later acknowledged that while he approved the leave, he could not recall seeing the approved leave slip. Since the Postmaster was not working on the day in question, management could not confirm Complainant’s leave request. It was agreed to temporarily mark Complainant AWOL until proper documentation was received. In this matter, the issue was resolved four-days later. Complainant again has not demonstrated that the Agency’s legitimate nondiscriminatory reason was pretext for discrimination. Moreover, as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, 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, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to demonstrate that management’s actions were motivated by discriminatory animus. Hostile Work Environment Complainant also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome conduct; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. jurisdiction. See Simensen v. U.S. Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002); Whitney G., v. U.S. Postal Serv., EEOC Appeal No. 0120161289 (June 8, 2016). 2020004071 7 After careful consideration, we conclude Complainant has not established that the actions forming his harassment claim occurred because of his race. Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. 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. 2020004071 8 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). 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 November 16, 2021 Date