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

Equal Employment Opportunity Commission

Dec 29, 2021

Appeal No. 2022000298 (E.E.O.C. Dec. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandy S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022000298 Agency No. 1G-761-0027-18 Hearing No. 450-2019-00120X DECISION On October 14, 2021, 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 21, 2021, final order 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 Mail Handler at the Agency’s Abilene Processing and Distribution Center in Abilene, Texas. Complainant alleges that the Mail Processing Clerk (Clerk), the Operations Support Specialist (OSS), and the Plant Manager discriminated against him. Specifically, he contends that on May 24, 2018, he was instructed to get off the clock and was charged with Leave Without Pay (LWOP). See Report of Investigation (ROI) at 00015. 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. 2022000298 2 Complainant reported that he was paged to the OSS’s office, and OSS asked Complainant what he was doing. Id. After explaining what he was doing, OSS indicated she wanted him to do something else. Complainant has explained that he was only called to the office because Clerk was trying to tell him what to do. As Clerk was not a supervisor, Complainant told OSS that Clerk could not tell him what to do. Thereafter, OSS instructed Complainant to get off the clock, and he was charged with LWOP. Id. Complainant also reported that when he spoke to Plant Manager, she told him that the LWOP status would be changed to administrative leave. This change in leave type did not occur. Id. On July 5, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (58) when: 1. On May 24, 2018, he was instructed to clock out prior to the end of his tour and placed on LWOP. During the investigation, when interviewed, OSS stated that on May 24, 2018, at around 8:15 a.m., she was advised by another employee that Complainant was on the dock moving empty equipment instead of cutting and prepping mail. See ROI at 00041. She testified that as a Mail Handler, Complainant was required to cut and prep mail. Id. As such, she paged Complainant to her office in order to direct him to cut and prep mail. Id. Upon arrival to her office, Complainant reportedly yelled at OSS and refused to cut and prep mail. Id. She then instructed Complainant to clock out and advised him that his time would be coded as LWOP. Id. OSS clarified that she did not state that Complainant’s time would be changed to administrative leave. Id. OSS specified that Complainant was being sent home for insubordination for raising his voice to her and for failure to follow instructions. Id. She noted that she was not sure if any other management official told Complainant that his time would be charged as administrative leave. Id. OSS also stated that she informed Complainant of the reason for being sent home, and Complainant walked away saying he would get a long weekend. Id. OSS further explained that Complainant's sex nor age were factors when she instructed him to clock out prior to the end of his tour and for placing him on LWOP. Id. Plant Manager provided a statement in regard to Complainant's complaint of discrimination. She stated that she was not responsible for placing Complainant on LWOP and that she was in training at the time of the alleged incident. See ROI at 00041. She further stated that she did not advise Complainant that his status for May 24, 2018, would be changed from LWOP to administrative leave. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing in favor of the Agency on September 15, 2021. 2022000298 3 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that management did not schedule an investigation interview, nor was he informed of a reason for being instructed to clock out before his shift ended on May 24, 2018. Complainant also expresses his frustration with the difficulties of the EEO process for a pro se complainant such as himself, noting that at one point he was on hold with an EEO office for over six hours. He also claims that there were inaccuracies in the Alternate Dispute Resolution Specialist’s inquiry, such as incorrect descriptors of certain employee’s operation number codes. He argues that in contrast to the statement made by OSS wherein she described his refusal to cut mail, the conversation actually lasted one minute in duration and he did not have the opportunity to refuse to cut mail. Additionally, Complainant argues that he was not informed that after clocking out his time would be coded as LWOP. Lastly, Complainant includes statements regarding his illness following the event on May 24, 2018. He reports that following being placed on LWOP, he endured severe illness and was not able to report to work. In response to the appeal, the Agency contends that Complainant failed to identify any error in the AJ's decision granting summary judgment in favor of the Agency. The Agency rearticulates the series of events which led to the claim at issue, including statements from those involved. Ultimately, the Agency argues that Complainant did not show a genuine dispute of material fact. Furthermore, the Agency asserts that the record has been developed and Complainant has failed to prove his case. The Agency also notes that they have established legitimate, nondiscriminatory reasons for the actions taken, which Complainant cannot refute as pretext. ANALYSIS AND FINDINGS Decision Without a Hearing 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 based 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Ch. 9, § VI.A. (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 2022000298 4 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant did not file a response to the AJ’s August 30, 2021, Notice of Proposed Summary Judgment. Upon review, Complainant has not provided any argument or evidence that there are material facts in dispute. Further, as noted above, the Commission finds that the AJ appropriately issued the decision without a hearing. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco Const. 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, 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. 2022000298 5 Where 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the preponderance of the evidence in the record does not establish that the Agency's legitimate, nondiscriminatory explanation for its action was pretext for discrimination. The Agency provided a legitimate, nondiscriminatory reason for placing Complainant on LWOP on May 24, 2018. The record contains statements demonstrating that Complainant was insubordinate, raised his voice when speaking to a supervisor, and failed to follow instructions. Further, while Complainant has stated on record that he was unaware of the reason he was sent home and given LWOP, OSS stated in the ROI that she explained to Complainant why he was being sent home. She detailed the situation on May 25, 2018, wherein Complainant was not participating in appropriate job duties. On appeal, Complainant argues that he did not refuse to do his job duties and he was not told that he would receive LWOP. However, he has not presented any evidence or argument showing that the Agency’s actions were motivated by discrimination. As noted above, once the responsible Agency officials have articulated legitimate, non-discriminatory reasons for the disputed actions, the burden is on Complainant to show that these proffered reasons are a pretext designed to mask the true discriminatory motivations. There is simply no evidence that Complainant’s sex or age played a role in the decision to send Complainant home and charge him with LWOP. Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. 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 adoption of the AJ’s decision finding no discrimination. 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. 2022000298 6 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. 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. 2022000298 7 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 December 29, 2021 Date