[Redacted], Mary K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Apr 26, 2021

Appeal No. 2021000394 (E.E.O.C. Apr. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mary K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000394 Agency No. 1F-901-0081-17 DECISION On October 9, 2020, 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 September 4, 2020, final decision 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 Group Leader Mail Handler at the Agency’s Processing and Distribution Center (P&DC) in Los Angeles, California. On June 29, 2017, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against her for her prior EEO complaint (Agency Nos. IF-901-0060-14 and IF-901-0084-16) when: 1. on April 18, 2017 she was accused of being drunk on the job; and 2. on May 30, 2017, she was issued a Notice of Removal.2 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. 2021000394 2 After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ remanded the complaint to the Agency after Complainant withdrew the hearing request. the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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 a 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. 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, non-discriminatory 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). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Claim 1 The responsible Agency officials articulated legitimate, non-discriminatory reasons for the incident on April 18, 2017. According to management witnesses Complainant was observed showing signs of intoxication, and as a result, Complainant was asked to submit to screening. The screening included a breathalyzer and a urinalysis, at the Agency’s medical facility, that revealed that Complainant had alcohol and marijuana in her system. 2 Complainant alleged that her two claims occurred on March 14 and March 30, 2017, respectively. However, the record, through an incident report, investigation, and other documentation, reflects that the dates of occurrence were actually April 18 and May 30, 2017, respectively. 2021000394 3 The record has varying testimony as to Complainant’s demeanor that led to RMO1 (Supervisor) (who was named in Complainant’s prior EEO complaints) to seek the evaluation of Complainant. There was testimony that an Occupation Safety and Health Administration (OSHA) representative smelled alcohol on Complainant. RMO2 (Acting Lead Manager of Distribution Operations) (unaware of Complainant’s prior EEO activity) testified that Complainant was observed smelling of alcohol and acting erratically. Complainant was also observed being combative with the OSHA representative. The actions, described in the testimony from Agency officials, led to the request for Complainant to take a breathalyzer and submit a urine sample. Complainant’s blood alcohol test showed alcohol. The urinalysis revealed marijuana in Complainant’s system. Complainant admitted that the night before, while at home, she consumed both marijuana and alcohol. The fact that Complainant’s tests resulted in positive results for both alcohol and marijuana is further evidence that the Agency’s articulated rationale for accusing Complainant of being drunk on the job on April 18, 2017, was legitimate. Complainant’s demeanor, coupled with the results of her blood alcohol test and urinalysis, provide cause for Agency officials to suspect that Complainant was drunk. Complainant has not provided evidence to demonstrate that the Agency’s articulated rationale is pretext designed to mask retaliatory animus as a motivating factor. Claim 2 Agency management witnesses also articulated a legitimate, non-discriminatory rationale for issuing Complainant the May 30, 2017 removal notice. As discussed above, Complainant was found to have tested positive for both marijuana and alcohol on April 18, 2017. The investigation into the April 18, 2017 incident, revealed that Complainant admitted to consuming alcohol and using marijuana on the evening of April 17, 2017. Complainant chose to come to work on April 18, 2017, when she still had alcohol and marijuana present in her system. The notice of removal stated that there was concern that Complainant would do something similar again, because Complainant’s answers during the investigation led Agency officials to determine that Complainant was not taking responsibility for her actions. Management witnesses stated that Complainant seemingly dismissed the severity of the matter, because her consumption of marijuana and alcohol occurred outside of work. Additionally, the removal notice addressed several rules and regulations in the Agency’s Standards of Conduct that Complainant’s actions violated, including for Loyalty - Section 665.11, Discharge of Duties - Section 665.13, Behavior and Personal Habits - Section 665.16, Illegal Drug Sale, Use, or Possession - Section 665.26, and Intoxicating Beverages - Section 665.26. Finally, Complainant had a prior June 15, 2016 7-Day Suspension, reduced from a 14-Day Suspension, for unacceptable conduct. The Agency provided evidence of another employee subjected to the same disciplinary action for similar misconduct. Complainant again fails to provide evidence that the Agency’s articulated legitimate, nondiscriminatory rationale for ssuing the removal notice was pretext for discrimination based on retaliatory animus. 2021000394 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding that no unlawful retaliation was established. 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. 2021000394 5 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 April 26, 2021 Date