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

Equal Employment Opportunity Commission

Dec 16, 2021

Appeal No. 2020003992 (E.E.O.C. Dec. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shelton D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020003992 Hearing No. 510-2016-00306X Agency Nos. 6U-000-0008-15 & 6U-000-0025-15 DECISION On June 30, 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 June 1, 2020 final order concerning two equal employment opportunity (EEO) complaints 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 Senior Sales Executive, EAS-23, at the Agency’s Peninsula Station in Tampa, Florida. Complaint 1 - Agency No. 6U-000-0008-15 On March 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic - Puerto Rican), sex (male), color (Brown), and reprisal for prior protected EEO activity 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. 2020003992 2 1. on February 11, 2015, he was placed on an emergency off-duty status, and 2. on April 8, 2015, he was issued a Notice of Proposed Removal for improper conduct. The Agency accepted the complaint for investigation and docketed the complaint as Agency No. 6U-000-0008-15. Complaint 2 - Agency No 6U-000-0025-15 On December 18, 2015, Complainant filed a subsequent complaint alleging, since December 2013, the Agency subjected him to discrimination and hostile work environment harassment on the bases of national origin, sex, color, and reprisal for prior EEO activity (Complaint 1 above) when: management failed to investigate his claim of groping by a female coworker; management placed Complainant on administrative leave in October 2014; in December 2014, management issued Complainant a proposed letter of warning; in February 2015, management placed Complainant on administrative leave; and management issued a Notice of Proposed Removal and then a Letter of Decision - Removal on August 3, 2015. The Agency docketed the second complaint as Agency No. 6U-000-0025-15. The Agency dismissed all the allegations in Complaint 2 with the exception of those related to the final removal decision, mainly as duplicative of Complaint 1 or untimely raised, in essence reducing Complaint 2 to the following claims, which it accepted for investigation:2 3. On August 3, 2015, he was issued a Letter of Decision removing him; and 4. On January 1, 2016, the Agency issued an administrative appeal decision, in accordance with Subchapter 650 of the Agency’s Employee and Labor Relations Manual, affirming the removal decision. Investigations of the Complaints During the EEO investigation for Complaint 1, Complainant stated that a female coworker (C1) accused him of sexual harassment and the Agency conducted an inquiry. Complainant stated that he alleged another female coworker (C2) grabbed his buttocks in the workplace and then C2 accused him of the same in retaliation. Complainant stated that C2 accused other coworkers of sexual harassment and none of them were placed on emergency off-duty status, and management put him on emergency placement and then issued him a proposed removal. 2 We concur with the Agency’s dismissal of the redundant or untimely matters raised in Complaint 2. The Agency’s decision characterize the accepted claims as only those related to the ultimate removal decision is affirmed. 2020003992 3 For Complaint 1, the District Manager (S1) stated, in October 2014, management placed Complainant on administrative leave following serious allegations of sexual harassment by a coworker, C1. Between October 2014 and December 2014, the Agency conducted an investigation, during which time, another coworker, C2, also alleged sexual harassment by Complainant. Complainant then claimed that C2 grabbed his buttocks and, during that investigation, harassment claims from three other coworkers arose. Management placed Complainant on administrative leave in December 2014 and again in February 2015. S1 stated, in April 2015, management issued him a Notice of Proposed Removal, finding the allegations of three coworkers credible and warranted disciplinary action. S1 stated that the Agency is obligated to remove an employee accused of misconduct from the workplace and conduct an investigation during which the accused can respond to the allegations. S1 stated that the October 2014 inquiry resulted in a proposed letter of warning (reduced from suspension) and the 2015 investigation resulted in proposed removal for improper conduct. S1 stated that Complainant’s claim of groping was not substantiated. As to Complaint 2, in the August 2015 removal decision, the Agency cited “improper conduct,” and stated the decision was “based on the cumulative evidence from all investigations into your alleged misconduct, and your responses to the allegations.”3 The August 2015 removal was the final decision for the April 2015 proposed removal. Management stated that it removed Complainant for very serious misconduct substantiated through investigations. Consolidated for Hearing Following EEO investigation, the Agency provided Complainant with a copy of the reports of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. However, on May 22, 2020, the AJ issued a summary judgment decision finding no discrimination. The AJ found that Complainant only presented “conclusory allegations” and failed to establish that the legitimate, nondiscriminatory reasons articulated by the Agency management witnesses for the disputed actions were pretext masking discrimination or unlawful retaliatory animus. 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. The instant appeal from Complainant followed. 3 The record reveals that Complainant filed an appeal of the removal action, and after an Employee and Labor Relations appeals process, including a hearing, the Agency upheld the removal on February 4, 2016. 2020003992 4 ANALYSIS AND FINDINGS 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). 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 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 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. 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). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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 the agency has articulated a legitimate, non-discriminatory 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). 2020003992 5 Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on national origin, color, sex, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Agency management witnesses explained that Complainant was placed on emergency administrative leave to conduct an investigation into allegations of sexual harassment by Complainant received from a number of coworkers. After the investigations essentially corroborated the complaints, management proposed Complainant’s removal for serious misconduct due to the cumulative nature of the offenses. Complainant appealed the removal through an Employee and Labor Relations process, which included a hearing, and the removal was upheld. After careful consideration of the evidence of record, we affirm the AJ’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the justifications proffered by management witnesses were a pretext designed to mask discriminatory motivations or unlawful retaliatory animus. Moreover, to the extent that Complainant was also raising a claim of discriminatory harassment/hostile work environment, he must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his national origin, color, sex, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As already discussed above, there is simply no evidence here of discriminatory motivation or retaliatory animus in the disputed actions. Complainant’s claim of discriminatory harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination or unlawful retaliation. 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 2020003992 6 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. 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. 2020003992 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 16, 2021 Date