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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2021001026 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021001026 Agency No. 4J-604-0095-20 DECISION On November 18, 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 October 15, 2020 final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator, PS-08, at the Agency’s South Suburban Processing and Distribution Center facility in Bedford, Illinois. On June 5, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (white), age, and reprisal for prior protected EEO activity when, on March 10, 2020, he was issued a Notice of Separation During Probationary Period. The Agency accepted the complaint and conducted an investigation, which revealed the following pertinent facts: 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. 2021001026 2 Complainant attested that the alleged basis of retaliation was not related to prior EEO activity. Complainant attested that he was involved in a motor vehicle accident at work, while driving a trailer. He acknowledged that he was issued the Notice of Separation due to his failure to perform his duties in a safe manner, but he disagreed with this reason. He asserted that he was not trained correctly, and he did not receive complete communication regarding how to proceed when driving in the congested yard at the facility. He asserted that the congestion of the yard did not leave ample room to move the equipment, the equipment had been retro-fitted and did not comply with how the equipment should have been used, and there were equipment irregularities with the red emergency line and the blue service line. He attested that he spoke with the Transportation Supervisor about the retrofitted hoses and the Transportation Supervisor told him not to worry about that. Complainant generally suggested that the accident could have been caused by faulty, defective, or retrofitted equipment. Complainant alleged that his race was a factor because all the persons in authority are black and those who are not white and had accidents during their probationary period were not issued Notices of Separation. He attested that most of the employees are black and he was treated differently, made to feel uncomfortable, and felt that he could not express too much for fear of retaliation because he is not black. He alleged that his age was a factor because he was told about younger employees who also had accidents during their probationary period but were not separated. The Transportation Supervisor attested that he was the management official responsible for issuing Complainant the Notice of Separation and the Acting Supervisor was the concurring official. He attested that Complainant was issued the Notice of Separation because he was involved in an “at fault” accident during his 90-day probationary period. He attested that Complainant was provided online training courses and hands-on training with the tractor trailer training instructors, including 6 hours of online defensive driving instruction and 8 hours of on- course instruction with the driving instructor. He denied knowledge of any retrofitted equipment and denied speaking with Complainant about hoses or any other operations. The Acting Supervisor also attested that Complainant was separated because he had an “at fault” accident during his 90-day probationary period. He explained that all drivers are trained prior to being released to full duty and they work with a full-duty driver for a week prior to becoming independent drivers. He explained that the training consists of proper speed limits, visual management, proper backing technique, including that proper set up for backing, and space management. He denied knowledge of any equipment that was retrofitted or noncompliant. A Notice of Separation During Probationary Period, dated March 10, 2020, indicates that Complainant was separated, effective March 10, 2020, for failure to perform his duties in a safe manner, resulting in a preventable vehicle accident. It describes the events of an accident occurring on March 3, 202 and indicates that Complainant hit the front end of the Eagle Express Lines tractor, causing damage to both that trailer and the Agency’s trailer. 2021001026 3 It indicates that the accident was caused by Complainant’s inattentiveness and provides that the separation was in accordance with the Union Agreement, which provides that the probationary period for a new employee is 90 days and the Agency has the right to separate any probationary employee at any time during that probationary period. A Pre-Discipline Interview, dated March 9, 2020, indicates that Complainant was interviewed regarding the March 3, 2020 accident at issue. The record includes a motor vehicle report and other accident reports and statements describing and documenting the March 3, 2020 accident at issue. 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). 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 decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that he should not have been separated because there were extenuating circumstances and asserts that there were no witnesses to the accident. He asserts that the accident was attributable to the insufficient training and retrofitted equipment. The Agency has not submitted a statement in response to the appeal. 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, 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”). Complainant’s allegations give rise to a claim of disparate treatment. 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). 2021001026 4 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). 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, as here, 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). Here, the Agency explained that Complainant was issued a Notice of Separation because he was involved in an “at fault” accident during his 90-day probationary period, which was in accordance with its rights under the Union Agreement. Although Complainant alleged that the Agency acted discriminately or in reprisal, the record does not establish that the Agency’s actions were related to Complainant’s race, age, or any prior EEO activity. Therefore, his claim fails. 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. 2021001026 5 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). 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. 2021001026 6 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 December 16, 2021 Date