[Redacted], Merlin W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020003854 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Merlin W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020003854 Agency No. 6P-000-0016-19 DECISION On June 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Real Estate Specialist at the Agency’s Facilities Leasing Headquarters in Washington, D.C. On November 16, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (53), and reprisal for prior protected EEO activity when, on August 12, 2019, he was issued a Letter of Warning (LOW). 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. 2020003854 2 The investigative record reflects the following pertinent matters relating to the subject claims. Complainant asserted that the Manager of Facilities Leasing (Manager) (Caucasian, female, over 40, unknown EEO activity) fabricated attendance issues in order to issue him the August 12, 2019 Letter of Warning (LOW). Complaint File (CF) at 129, 133, and 146. Complainant asserted that the issue occurred after he expressed disagreement with having to issue a disciplinary action to a subordinate employee in March 2019. Complainant noted that after he made his disagreement known, the Manager seemed to target him. Id. On August 12, 2019, Complainant was issued the LOW for Failure to Obey. CF at 172-73. The LOW detailed Complainant’s noncompliance with the Agency’s core work hour policy that designated that Complainant be ready and working at the start of his 9 a.m. shift. Id. The LOW detailed four incidents in which the Manager found that Complainant was late. The LOW also detailed the Manager’s and Complainant’s ongoing discussions regarding his obligations to abide by core work hours. Id. Complainant disagreed with the LOW and asserted that the core work hour policy did not require him to be at his desk at 9 a.m. CF at 149. Complainant asserted that he often arrived at the building prior to 9 a.m. and frequently stayed until after 6 p.m. Id. Complainant noted that once he arrived in the building, he was ready to work and often working. For example, he noted that at times he wouldn’t drop his personal affects off at 9 a.m., and instead go to another part of the building to discuss work related matters with another department. Complainant argued that the Manager focused too much on whether he was utilizing the facility’s shower and restroom as he biked to work and would use the facilities prior to working. Complainant also believed that the Manager unfairly targeted him as a black male over 40 and cited to several male employees over 40 that were removed during their probationary periods. CF at 155. In response, the Manager asserted that on more than five occasions, she reminded Complainant of his obligation to be ready and available to work at 9 a.m., which meant more than being in the building. CF at 187. The Manager noted that Complainant acknowledged that he was not always at his desk at 9 a.m., but felt that he was complying because he would be in the building and available to work by 9 a.m. The Manager asserted that presence in the building was insufficient if his colleagues did not know he had arrived. Id. 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 EEOC Administrative Judge (AJ). Per Complainant’s request, 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 him to discrimination as alleged. 2020003854 3 CONTENTIONS ON APPEAL On appeal, Complainant provides a detailed appellate brief arguing that he was targeted for the LOW because of his protected bases and in reprisal for his actions in another employee’s EEO action. Complainant asserts that he was the only employee targeted for not being at his desk at 9 a.m. Complainant reiterates earlier arguments made during the investigation to substantiate his claim. The Agency did not submit an appellate brief. 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 (EEO MD-110), at Chap. 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 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 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. 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. 2020003854 4 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 based on his race, sex, age, and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Manager averred that Complainant was frequently not found at his desk at 9 a.m., which is the beginning of the Agency’s core work time. Complainant clearly disagreed with this policy and repeatedly argued that he was often in the building prior to 9 a.m. and would often stay beyond 6 p.m. to complete work as needed. However, despite his numerous arguments, Complainant has failed to provide evidence to demonstrate that the LOW was issued because of his protected classes or in reprisal. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions such as core work times, 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. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). While Complainant may have strongly disagreed with the Manager’s reasoning for the LOW, the record does not establish that the Manager issued the LOW due on his protected bases. 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 finding that it did not discriminate or retaliate against Complainant as alleged. 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 2020003854 5 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). 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. 2020003854 6 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 15, 2021 Date