[Redacted], Stacey R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 2, 2021Appeal No. 2021000576 (E.E.O.C. Mar. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacey R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000576 Agency No. 4G-770-0017-20 DECISION On October 26, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 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 Supervisor, Customer Services at the Agency’s Memorial Park Station in Houston, Texas. On February 3, 2020, Complainant filed the instant formal complaint alleging that the Agency discriminated against him on the bases of race and in reprisal for prior EEO when, on or about September 9, 2019 and ongoing, he was involuntarily reassigned to the Houston District Administrative Office; on October 22, 2019, he was told his request for a downgrade into a 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. 2021000576 2 carrier’s position was impossible; and effective October 25, 2019, he alleged he was forced to resign.2 In its September 24, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS Reassignment and Denial of Downgrade 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, she must first establish a prima facie 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, nondiscriminatory 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 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). In support of his retaliation claim, Complainant identified his prior protected activity was his verbal protests to management as early as March 2019 concerning the possibility of reassigning him to the Houston District Administrative Office (which eventually occurred in September 2019). We will assume he claimed the reassignment was race-based during these discussions and that management was aware of this. 2 The record reflects although Complainant filed an appeal with the Merit Systems Protection Board (MSPB) alleging that his resignation from the Agency was involuntary, on July 13, 2020, the MSPB judge dismissed Complainant’s appeal for lack of MSPB jurisdiction. 2021000576 3 Here, however, we find that the responsible Agency officials articulated legitimate, non- discriminatory reasons for the disputed actions as detailed below. Complainant alleged that on or about September 9, 2019 and ongoing, he was involuntarily reassigned to the Houston District Administrative Office with no specific duties. The Manager, Customer Service (African American) stated that during the relevant period she was Complainant’s supervisor. She explained that because Complainant received disciplinary action for falsifying his own clock rings, he was taken out of his supervisor position that would require him to have access to timekeeping and other financial responsibilities. The record contains a copy of Complainant’s Notice of Proposed Removal dated August 2, 2019, charging him with the following: Specification 1: On multiple occasions and without authorization, you used the employee identification number of another employee to manually enter your own work hours. Specification 2: On multiple occasions, you failed to follow official instructions when you improperly recorded a basic time entry without using your time card. Specification 3: On multiple occasions, you improperly recorded your manual time entries to show that you began work before your authorized start time. Specification 4: On multiple occasions, you received improper payment of unauthorized wages when your time entries documented that you began work before your authorized starting time. Further, the notice stated: “your conduct was serious, intentional for your own gain and cause a loss of postal funds through the payment of unauthorized wages. As a supervisor, you are held to a higher standard and expected to enforce the rules and regulations of the Postal Service, but you betrayed your oath to uphold the Postal Service policies. As your manager, I must be able to trust you for you to complete your duties and responsibilities satisfactory, and [your] conduct has caused me to lose all trust in you…I have concluded that your removal from the Postal Service is appropriate and under the circumstances and that no lesser penalty would sufficiently address the seriousness of your behavior.” The Postmaster (Caucasian) explained that as a result of this serious misconduct management decided to reassign Complainant to the Houston District Administrative Office with no supervisory duties while a final decision was being made concerning the proposed removal. As a result, on or about September 9, 2019, Complainant was instructed to report to the Houston District Office. 2021000576 4 With regard to the decision not to grant Complainant’s request for a downgrade to a carrier position, the Postmaster explained that it was not granted because the final decision on Complainant’s proposed removal notice was still pending. Moreover, the Postmaster indicated there were union issues to consider to a move by management to reassign a supervisor to a craft position. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management of the disputed actions were a pretext designed to mask race discrimination or unlawful retaliatory animus. Constructive Discharge Complainant also asserted that he was forced to resign effective October 25, 2019, due to the discrimination and retaliation he was experiencing. In his affidavit, Complainant claimed that he was reassigned to the Houston District Main Office “in an unknown capacity for an unspecified amount of time.” He stated that he began “to suffer from worsened high blood pressure” and “was unable to maintain focus and no desire or pride in my job performance.” As a result, Complainant stated that on October 25, 2019, he submitted his resignation. In essence, by arguing his resignation was coerced by the Agency's actions, Complainant is raising a claim that he was constructively discharged. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Here, in light of our conclusion explained earlier in this decision that Complainant was not subjected to race discrimination or unlawful retaliation for engaging in prior protected activity, we conclude that Complainant has failed to prove that his resignation was a constructive discharge in violation of Title VII. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021000576 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 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). 2021000576 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 March 2, 2021 Date Copy with citationCopy as parenthetical citation