[Redacted], Timika O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 10, 2021

Appeal No. 2020004667 (E.E.O.C. Feb. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Timika O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004667 Hearing No. 443202000012X Agency No. 1J531003419 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s July 31, 2020 final order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Postal Support Employee ("PSE") Clerk, P-06, at the Agency’s Processing and Distribution Center ("P&DC") facility located in Milwaukee, Wisconsin. On April 15, 2019, Complainant filed an EEO complaint alleging discrimination by the Agency the bases of race/national origin (African-American/Black), color (Black), sex (male), age (48), 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. 2020004667 2 and reprisal for engaging in prior protected EEO activity2 when, on December 18, 2018, he was issued a Letter of Warning (“LOW”). The evidence developed during the investigation showed that during the relevant time frame, Complainant reported to a Supervisor, Maintenance Operations, EAS-17 (“S1”) (white, male, 42), and a Mail Clerk who was on a 204B detail as an Acting Supervisor (“S2”) (female, other bases not provided) as his immediate supervisors. Complainant also reported to the Lead Manager, Distribution Operations, EAS-24, (“M1”) (Hispanic, white/brown, Puerto Rican, male, 49). Complainant’s third level supervisor, the Senior Manager, Distribution Operations, EAS-25 (“M2”) (Caucasian, American, male, 59) was named in several of Complainant’s prior EEO complaints. At the time of the alleged discriminatory act, Complainant was scheduled to participate in an EEO hearing for one of his complaints on December 18, 2019, where both M1 and M2 would be present.3 The Letter of Warning (“LOW”), signed and issued by S1, states that it was issued because, on December 2, 2018, Complainant was away from his assigned work area for 1 hour and 29 minutes while he was on the clock. According to the letter, after clocking into his tour at 11:00 pm, he was not at his work area by 11:05 pm, but rather sat in the breakroom until S2 saw him at 12:34 am. When S2 asked, Complainant explained that he had been waiting for a seat to open up in his work area so that he could work, and that he thought someone would let him know when one became available. S2 responded that Complainant should have let her know because she could have found somewhere for him to work. Complainant alleges that on December 2, 2018, S2 was ordered by M2, her supervisor, to write him up. At the time, Complainant had named M2 as a responsible management official in an open EEO complaint with a hearing scheduled on December 18, 2018. Complainant explained, “for the past 2 months I have been dealing with having to wait two hours for two employees to leave at 1:00 am or 1:30 am for me to start working.” He indicates that S2 was aware of this, and that he would wait in the breakroom until she or someone else let him know that a seat opened up. He also recalls that S2 told him that she was issuing the LOW because M2 directed her to. Complainant argues that M2 and S2 issued the LOW, but S1 signed it and testified that he was responsible for issuing to protect M2 from an appearance of retaliation. After its investigation into the complaint, 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 (“EEOC” or “the Commission”) Administrative Judge (“AJ”). 2 Agency Nos. 1J531003419, 1J531000719, 1J531007117 and 1J531003418. 3 Agency No. 1J531003418 (alleging that M2 discriminated against Complainant on March 10, 2018 when he told other management officials to restrict Complainant from the building for an on- the-job injury). 2020004667 3 Complainant timely requested a hearing. Over Complainant’s objection, the AJ issued a decision by summary judgment in favor of the Agency on July 7, 2020. The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove discrimination as alleged. 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 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. (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). In order 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. 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. 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 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. Texas 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. 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, 2020004667 4 460 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). Here, the Agency’s legitimate nondiscriminatory reason for issuing the December 18, 2018 LOW was that Complainant’s conduct violated Agency policy, and that his “action adversely affects postal operations and could result in delays in mail processing, and additional overtime.” The LOW charged Complainant with “failing to give a fair day’s work for a fair day’s pay” in violation of Article 34, Section 1 of the Collective Bargaining Agreement (“CBA”) between the Union and the Agency, as well as Agency Policy under its Employee and Labor Relations Manual (“ELM”), Sections 665.11 and 665.13. The Agency’s reason is supported in the record, including copies of the relevant portions of the CBA and ELM policies Complainant violated. Additionally, Complainant confirms in the record that he routinely spent over an hour and a half in the break room during work hours, when he was not on break, as stated in the LOW. To overcome the Agency’s proffered legitimate nondiscriminatory reason and supporting evidence, Complainant must establish that its explanations were pretext for an underlying discriminatory or retaliatory motive. In order to do so, Complainant should present evidence such as documents or sworn statements sufficient to contradict the explanation provided by the Agency in order to establish pretext. Alternately, as Complainant is appealing a decision by summary judgment, he may demonstrate that there is a question of fact on whether the Agency’s legitimate nondiscriminatory reasons were pretext for discrimination or retaliation. Indicators of pretext include (but are not limited to) unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. See Complainant v. Office of Pers. Mgmt. & Soc. Sec. Admin., EEOC Appeal Nos. 0120120901 & 0120123038 (Dec. 2, 2013). Retaliatory motive is more typically demonstrated by what one appellate court has described as a "convincing mosaic" of circumstantial evidence that would support the inference of retaliatory animus. Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013) (citation omitted). The pieces of that "mosaic" may include, for example, suspicious timing, verbal or written statements, comparative evidence that a similarly situated employee was treated differently, falsity of the employer's proffered reason for the adverse action, or any other "bits and pieces" from which an inference of retaliatory intent might be drawn. Id. An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes. Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) request for reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002) citing Furnco, Nix v. WLCY Radio/Rayhall Comm., 738 F.2d 1181 (11th Cir. 1984). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). 2020004667 5 On appeal and in his Opposition to Summary Judgment, Complainant argues that inconsistencies exist, and a hearing is necessary because the record is not sufficiently developed. Specifically, Complainant also seeks login and log off times for various management officials, and security camera footage, to support his contention that S1 did not initiate the LOW. Rather, Complainant argues that this evidence would establish that management officials who were named in his prior EEO actions directed S2 to issue the LOW, as S1 was not working on December 2, 2018. The inconsistencies Complainant seeks to prove do not create a question of fact regarding the Agency’s legitimate nondiscriminatory reasons for issuing the LOW, which, again, Complainant does not dispute. Moreover, Complainant’s requested evidence would not show that the Agency's action was unreasonable in terms of business judgment, as it is undisputed that Complainant violated Agency policy. The Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). We note that even if true, Complainant’s allegations that S1 was motivated by familial relationship or an interest in “protecting” M2 and S2 are irrelevant in light of the Agency’s legitimate nondiscriminatory reason. Sierra-Barber v. Dep’t of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes) citing Miranda v. United States Postal Serv., EEOC Request No. 05930130 (July 22, 1993) and McClinton v. Dep’t of the Air Force, EEOC Request No. 05921032 (May 6, 1993). Alternately, Complainant identifies a comparator (“C1”) (African American, female, approximately age 55) as evidence that he was treated differently than other employees. Assuming that C1 was “similarly situated” so that her treatment by the Agency is comparable to that of Complainant, her experience is not evidence that Complainant was treated differently, as C1 was subject to the same Agency action, an LOW. Complainant’s argument that C1 was treated differently because, in a subsequent grievance decision, her LOW was expunged, whereas his was reduced to a Discussion, does not render C1 a viable comparator for purposes of this Decision. The issue before us is whether the Agency’s action of issuing an LOW was motivated by discrimination or retaliation. A decision reached through grievance process falls outside the scope of this Decision and EEOC jurisdiction. See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Therefore, if Complainant wishes to challenge the outcome of his grievance on this matter, he must utilize the grievance process. Id. With respect to his retaliation claim, Complainant successfully identifies “suspicious timing” as the LOW was issued less than 3 weeks before an upcoming EEO hearing. However, an agency is not required to refrain from non-discriminatory personnel actions it would otherwise take simply because the employee has engaged in EEO activity. See Sotomayer v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006). As there is no question of fact regarding the Agency’s legitimate nondiscriminatory reason for issuing the LOW, overcomes the inference of reprisal raised by the proximity to Complainant’s protected activity to the alleged discriminatory act. 2020004667 6 Complainant has not offered any other evidence of inconsistencies in the documents and testimony in the record, including his own, with respect to the Agency’s proffered legitimate nondiscriminatory reason for issuing the LOW. Thus, without more, Complainant's argument that the Agency's articulated reason was a pretext for discrimination or retaliation is unproven, and insufficient to establish a question of fact exists to warrant a hearing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency’s Final Order adopting the AJ’s decision is AFFIRMED. 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). 2020004667 7 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. 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 February 10, 2021 Date