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

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021002783 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrell C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002783 Agency No. 4G-390-0005-20 DECISION On April 9, 2021, Complainant’s estate 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 March 2, 2021 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Manager, EAS-20, at the Agency’s Jackson-North Station in Jackson, Mississippi. On January 24, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity 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. 2021002783 2 when, on September 23, 2019, Complainant became aware that he was not given the leave he requested.2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. In his formal complainant, Complainant identified his supervisor (S1) as the person who took discriminatory actions against him. Complainant testified that S1’s job entailed timekeeping and that she was responsible for entering his leave into an electronic database and ensuring it was entered into the database correctly. Complainant made a request to use e-travel leave for a trip that he took to Dallas where he appeared in an EEO hearing filed against the Agency in February 2018. Complainant testified that S1 denied his request to use e-travel leave, and that he “had to get the area attorney involved to get her to reverse her actions.” In addition, Complainant stated that he submitted a request to use wounded warrior leave or leave without pay (LWOP) on various dates in 2019, but S1 entered his leave incorrectly based on his prior EEO activity and disability. Complainant stated that he asked S1 to correct his leave record, but she never took any action and failed to respond to 6 emails from him requesting a status update. Complainant indicated that it was important to correct his leave record because it affected his retirement date and retirement pay. S1 admitted that she initially denied Complainant’s request to use e-travel leave for his Dallas trip in February 2018. However, she testified that once she found out that the Mississippi district was responsible for his travel cost, she approved his leave request. S1 denied that she recorded Complainant’s leave incorrectly in 2019 and stated that she was on detail from March 2019 to June 2019. S1 testified that she did not know who entered Complainant’s leave into the Agency’s database incorrectly, but that she believed that “it was an honest mistake.” The record contains a time and attendance report which confirms that Complainant requested leave for various dates in March 2019 and July 2019 and that S1 did not enter his leave into the Agency’s electronic database. S1 testified that when she returned from her detail assignment Complainant contacted her to let her know that his leave was recorded incorrectly. S1 stated that she met with Complainant and the District Finance Manager on November 20, 2019, to discuss what adjustments had to be made, and that she made the adjustments to his recorded leave. With regard to his reprisal claim, Complainant testified that S1’s actions were based on his prior EEO activity because her tone and actions “got worse after [he] filed EEO complaints on her.” Complainant testified that S1 told him that she was not like “those people from Dallas” and that she was “not scared” of him. S1 denied mentioning anything about Dallas and stated that Complainant leaned towards her in an attempt to intimidate her and that she stated that he may “have other folks afraid of him” but she was not afraid of him. The record contains a detailed 2 In his formal complaint, Complaint raised discrimination claims based on race, color and age. He subsequently withdrew the claims in an affidavit dated April 15, 2020. Therefore, they are not at issue before us and will not be adjudicated in this decision. 2021002783 3 report of Complainant’s case history and it confirms that, in addition to the instant case, Complainant has filed seven prior EEO cases, including Agency Case No. 4G-390-0031-19, which was filed on January 15, 2019. Complainant named S1 as the responsible management official in Agency Case No. 4G-390-0031-19. With regard to his disability claim, Complainant testified that he had many conversations with S1 about his medical condition and that S1 was aware of his physical restrictions because he gave her medical documentation describing his condition and restrictions. Complainant testified that he was on dialysis for kidney failure three days a week, and that he had also been diagnosed with hypertension, neuropathy, chronic obstructive pulmonary disease, joint injuries, carpal tunnel syndrome, anxiety, depression, and post-traumatic stress disorder. His physical restrictions included limitations with standing and walking, and he required a cane. Complainant stated that when S1 saw him with a cane, she shook her head at him and asked him if he really needed his cane. In addition, Complainant testified that he overheard S1 stating “look at him, he is faking, he does not need that cane . . . he was walking faster trying to show that lady where the restroom is.” S1 admitted that she was aware that Complainant was on dialysis for kidney failure, but she denied making statements about Complainant’s restrictions. S1 stated that she, “never asked him or suggested that he did not need a cane.” The record contains a time and attendance report which shows that Postmaster (S2), Customer Service Supervisor (CS1), and Customer Service Supervisor (CS2) entered Complainant’s leave into the Agency’s database in March 2019 and July 2019. S2, CS1, and CS2 testified that they were not aware of Complainant’s prior EEO activity or work limitations. 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). Complainant requested an AJ hearing on January 26, 2021. However, before the hearing Complainant died and his estate asked for a final agency decision based on the evidence developed during the investigation in lieu of the hearing. On March 2, 2021 the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal was filed by Complainant’s estate. ANALYSIS AND FINDINGS 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review 2021002783 4 “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”). Retaliation Claim Complainant raised a claim of retaliatory discrimination. This claim is properly analyzed under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination. A complainant may do so by presenting facts which, 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 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. 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 has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 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 unlawful retaliation, the Agency has articulated a legitimate, nondiscriminatory reason for its action. The Agency articulated that leave that was entered into the database incorrectly was due to an honest mistake and subsequently adjusted. A review of the record shows that Complainant identified S1 as the discriminating official who entered incorrect time entries for 2019. However, the leave entries for 2019 were made by S2, CS1, and CS2. Despite the argument made otherwise, we cannot find that S1 was motivated by discriminatory animus in 2019 when she was not the person who entered Complainant’s leave incorrectly, and she took action to correct the leave entries by meeting with him and adjusting the entries. S1 also took action to approve Complainant’s request to use e-travel leave for his Dallas trip in February 2018 once she found out that the Mississippi district was responsible for his travel cost. We have scoured the record for any sign tending to show that the Agency was dissembling when it offered its explanation for its actions. There are none. Beyond Complainant's conclusory claims, there simply is no evidence to support - much 2021002783 5 less prove by a preponderance of the evidence - that he was treated disparately because of prior EEO activity. Disability Claim In analyzing a disparate treatment claim under the Rehabilitation Act, where the agency denies that its decisions were motivated by a complainant's disability we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See He- man v. Queens Village Comm. for Mental Health for Jamaica City Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. MATA, 179 F.3d 929, 933-34 (D.C. Cir. 1999). As discussed above, the Agency provided legitimate nondiscriminatory reasons which Complainant failed to rebut. 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 final decision. 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, 2021002783 6 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. 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. 2021002783 7 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 April 27, 2022 Date