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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2021002438 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trevor S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021002438 Hearing No. 531-2019-00580X Agency No. 4K-2100-057-18 DECISION 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 December 18, 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. BACKGROUND During the period at issue, Complainant was an applicant for employment with the Agency. On May 22, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (African/Cameroon), color (Black), and in reprisal for prior protected EEO activity (prior EEO activity “at another company,” identified as EEOC #560-2016-00302X). 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. 2021002438 2 By letter dated October 25, 2018, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: on November 1, 2017, Complainant was notified of his non-selection for the position of Assistant Rural Carrier (ARC) in the Baltimore, Maryland District.2 After an 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 24, 2020 motion for a decision without a hearing and issued a decision by summary judgment on December 11, 2020. The AJ found that Complainant did not establish a prima facie case of retaliation. The AJ further found that the Agency articulated legitimate, nondiscriminatory reasons for not hiring Complainant. The AJ set forth that the Agency indicated that Complainant responded on his employment application “yes” to a question inquiring as to whether he had been fired from a prior job. By contrast, the AJ found that the applicants who were selected had not responded that they were terminated or forced to resign in lieu of termination from a prior position. The AJ’s decision set forth that Complainant was not selected after three rounds of selections and thus was automatically rejected under the rule of three. The AJ further found that Complainant failed to establish that the Agency’s reasons were pretext for discrimination. 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 followed. On appeal, Complainant raises various arguments. Complainant reasserts that the Agency did not hire him because he told them that the federal Agency where he used to work retaliated against him by providing an inaccurate mid-year performance evaluation. Complainant states that the Agency improperly selected a candidate who has a relative working for the Agency (Postal Service). ANALYSIS AND FINDINGS 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. 2 The Agency initially dismissed Complainant’s complaint on procedural grounds. The Commission’s Office of Federal Operations reversed the Agency’s dismissal and remanded the matter for an investigation. EEOC Appeal No. 0120182587 (Oct 16, 2018) req. for recons. den. EEOC Request No. 2019001273 (April 10, 2019). 2021002438 3 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 Chapter 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 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. 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 Corp. 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, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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). 2021002438 4 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that Complainant applied for the position of ARC. Report of Investigation (ROI) at 107). On his employment application, he responded “yes” to the following question: “[h]ave you ever been fired from any job for any reason?” ROI at 201. An Agency official followed up with Complainant requesting additional information regarding his response. ROI at 34. Complainant asserts that he informed the Agency (Postal Service) that during his prior employment with a different federal agency, he received a mid-year evaluation that he believed to be unfair. Specifically, Complainant explained his termination of employment with the other federal agency as follows: I was forced to resign in September 2015 from a federal government job…stated I was performing poorly, whereas [two] weeks before my forced resignation, I successfully passed the Performance Improvement Plan (PIP), after my supervisor [wrongfully] wrote a bad mid-year evaluation of my performance. So after I write a rebuttal to that mid-year evaluation that the upper management probably read…management then wrongfully asked me to resign for poor performance, if not I would be terminated, …I resigned. They told me it would be better for me to resign, since [it] won’t prevent me from getting another federal job.,,It was wrongful termination…”3 ROI at 35. We concur with the AJ and the Agency that Complainant failed to establish a prima facie case of retaliation. We further concur with the Agency’s reasoning that “simply complaining about a poor evaluation is not EEO protected activity.” Agency’s Reply Brief to Complainant’s Motion for Summary Judgment. Based on the foregoing, we find that Complainant simply informing the Agency (Postal Service) that he found his mid-year evaluation from his prior employer to be inaccurate or unfair does not constitute protected activity. Even assuming arguendo, however, that Complainant established a prima facie case of retaliation and discrimination, we find, as set forth below, that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. The record contains an affidavit from a Postmaster (P1). 3 Complainant also set forth that he was terminated from a private sector position. ROI at 35. 2021002438 5 Therein, P1 asserts that she reviewed the applications of candidates and the recommendations by interviewers and submitted the results to Human Resources Shared Service Center (HRSSC) for processing by listing her recommendations on an Interactive Pre-hire list. ROI at 177-178. P1 asserts that she listed Complainant as “Recommended.” However, P1 states that she did not list Complainant as “Select” due to work history concerns. ROI at 184. As set forth above, the record reflects that Complainant acknowledges that he was either terminated or resigned in lieu of termination for two prior positions. The record also contains an Interactive Pre-Hire List indicating that Complainant was rated as “Recommended, while the selectees were rated “Select”. ROI at 185-188. The HRSSC official further noted that the Agency tries to select the most preferred applicants and that Complainant was considered in three rounds of selections and not selected. Thus, under the rule of three he was “auto-rejected.” ROI at 212. Complainant failed to establish that the Agency’s articulated reason was pretext for termination. Complainant asserts that one of the selectees had a relative already working at the Agency. We acknowledge that one of the selectees set forth on her application that she had a relative working for the Agency. ROI at 249-250. However, one of the selectees having a relative employed by the Agency is insufficient to establish that the Agency’s articulated reason is pretext for discrimination and/or retaliation. Accordingly, after considering the entire record, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing 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. 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). 2021002438 6 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. 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. 2021002438 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 22, 2021 Date