[Redacted], Minh G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 24, 2022

Appeal No. 2022000696 (E.E.O.C. Oct. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minh G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000696 Hearing No. 20-2200-0696 Agency No. 4F-926-0162-20 DECISION On November 18, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 19, 2021 final action 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 relevant period, Complainant worked as a City Letter Carrier at the Agency’s Pico Rivera Post Office in Pico Rivera, California. On November 5, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her in reprisal for prior EEO activity2 when: 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. 2 Record shows the prior EEO activity by Complainant occurred over a year before the incidents alleged in this case 2022000696 2 1. On September 15, 2020, Complainant was placed on Emergency Placement in an off- duty non-pay status; 2. On December 14, 2020, Complainant was again placed on Emergency Placement; 3. On January 2, 2021, Complainant was issued a 7-Day Suspension; and 4. On January 29, 2021, Complainant was issued a 7-Day Suspension, After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s summary judgment finding of no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614(EEO-MD-110), at Chap. 9, VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in factor of Complainant, a reasonable fact-finder could not find for Complainant. 2022000696 3 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). 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). The AJ determined that Complainant failed to establish a prima facie case regarding her retaliation claims because she did not establish a nexus between her prior protected activity, and the adverse employment actions. However, the AJ also continued by concluding that that even if a prima facie case of reprisal was made, legitimate, nondiscriminatory reasons were proffered by management witnesses for the disputed actions. Therefore, we will also assume a prima facie case was established and will go on in our analysis to consider the reasons proffered by the Agency for the actions in question. Regarding claim 1, the Supervisor, Customer Service, stated that on September 15, 2020, he noted that Complainant was acting out of control and pushed past him with a tray of mail. He stated that if he had not moved out of the way, Complainant would have hit him with a tray of mail. The Supervisor stated that, based on his observations, he believed Complainant was acting erratic and unstable. He was worried that Complainant would hurt him and/or other employees. The Postmaster stated that it was his decision to place Complainant on Emergency Placement on September 15, 2020, because she could not control herself and was yelling and pushing past supervisors. She was later allowed to return to work once it was determined she had herself under control. Regarding claim 2, the Postmaster stated that on December 14, 2020, he placed Complainant was placed on Emergency Placement for failure to follow instructions and unacceptable conduct. The 2022000696 4 Supervisor stated that Complainant slammed a door on him while he was in the doorway and was hostile with her volume and tone of voice. Regarding claim 3, the Postmaster stated that on January 2, 2021, Complainant was issued a 7- Day Suspension for Failure to Follow Instructions and Unacceptable Conduct. He noted there were four specifications for not following the Supervisor’s instructions as follows: (1) On December 14, 2020, the Supervisor gave Complainant a direct order to carry mail from her assignment Route 39 but she refused. (2) On December 14, 2020, the Supervisor gave Complainant a direct order to leave on a 16.7 but she refused. (3) On December 14, 2020, the Supervisor instructed her to clock over to her assignment and change into proper uniform but she refused. (4) On December 14, 2020, the Supervisor instructed her to clock out as she passed the time clock but she refused. With respect to the Unacceptable Conduct, the Postmaster stated that on December 14, 2020, her conduct was unacceptable when she raised her voice and proceeded to yell at management; and on December 14, 2020, Complainant slammed the door on Supervisor.3 Regarding claim 4, the Postmaster stated that on January 29, 2021, Complainant was issued a 7- Day Suspension by the Postmaster for her failure to observe safety rules when she backed up her postal vehicle and struck a stationary object. She also was cited for her failure, as required by Agency rules, to report the accident to her supervision immediately. Here, we conclude, like the AJ, that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by Agency management for the disputed disciplinary actions were a pretext designed to mask discrimination or unlawful retaliation. CONCLUSION We AFFIRM the Agency’s final action adopting the AJ’s summary judgment decision finding no unlawful retaliation. 3 The record reflects that following a union grievance, the suspension was rescinded and replaced with an official discussion. 2022000696 5 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 her request for reconsideration, and any statement or brief in support of 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). 2022000696 6 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 October 24, 2022 Date