[Redacted], Lovella S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2020001615 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lovella S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020001615 Agency No. 1C145003019 DECISION On December 1, 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 20, 2019, final decision concerning her 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 is whether the Agency properly determined that Complainant did not prove by a preponderance of the evidence that she was subjected to disparate treatment discrimination based on race. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Handler at the Agency’s Northwest Rochester, New York Processing and Distribution Center facility in Rochester, New York. 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. 2020001615 2 On February 20, 2019, the Agency issued Complainant notice of her emergency placement in an off-duty/non-pay status. The notice stated that retaining Complainant might result in injury to Complainant or others based on a threat to physically assault another employee (C1). According to Complainant, she was falsely accused of threatening C1. Complainant disagreed with the emergency placement decision and asserted that C1 had been the aggressor in the incident. On March 15, 2019, the Agency issued Complainant a seven-day no-time-off suspension notice for a charge of unacceptable conduct. The notice referenced the February 20, 2019, incident, stating that Complainant threatened another mail carrier and displayed unacceptable conduct on the workroom floor. Complainant was attributed with making comments such as: “You are not dead yet. Why are you still here?”; “If you hit me again, I am going to hit you back;” and during the investigative interview for the incident, “You are still talking? Won’t you lay down and let someone put some dirt on you.” When questioned regarding her statements, Complainant allegedly indicated that her actions were “because she was yelling at me.” On June 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American) when: 1. On February 19, 2019, Complainant was placed on Emergency Placement; and 2. On March 22, 2019, Complainant was issued a seven-day suspension. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her 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). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTION ON APPEAL On appeal, Complainant contends that she has experienced harassment and discrimination since starting with the Agency in 2007. Complainant reiterates that she was assaulted and sent home while management officials failed to grant her request to review video footage to prove that she was not the aggressor. She adds that an employee hit her in 2016, and the Agency failed to discipline the individual who hit Complainant, despite Complainant providing witnesses. Complainant asserts that management officials improperly stated that they witnessed Complainant threaten C1 because they were not in the building at the time of the incident in question. 2020001615 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 To prevail in a disparate treatment claim such as this, Complainant 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 or she 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. 13. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, the Agency explained that Complainant was placed on emergency placement following a review of statements from three employees, including Complainant, C1, and a witness. ROI, at 73, 91, 109-112. Complainant was specifically placed on emergency placement because of a threat of physical harm to C1. Id. Similarly, management officials affirmed that Complainant received the suspension because of their belief that Complainant threatened a coworker. Id. at 85. As for Complainant’s claims that Caucasian employees threatened coworkers without discipline, management officials explained that C1 was not subjected to the same discipline that Complainant received because witness statements corroborated C1’s statement regarding the incident. Id. at 74, 79. With respect to Complainant’s allegations that two other Caucasian employees were treated differently when they threatened employees without disciplinary action, we find that those comparators were not similarly situated to Complainant. Specifically, the comparators either had different supervisors or held different positions. 2020001615 4 To be considered “similarly situated,” a comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Complainant v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), request for reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). Complainant did not demonstrate that the Agency's legitimate, nondiscriminatory reasons were pretext. Therefore, Complainant did not prove by a preponderance of the evidence that she was subjected to disparate treatment discrimination based on race. 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. 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. 2020001615 5 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 July 15, 2021 Date