[Redacted], Truman B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 24, 2021Appeal No. 2020000630 (E.E.O.C. Mar. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Truman B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000630 Hearing No. 461-2018-00077X Agency No. 4G-700-0134-17 DECISION On September 18, 2019, 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 August 15, 2019, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are whether the Agency was entitled to a grant of its motion for summary judgment as a matter of law and whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to discrimination based on his protected classes or in retaliation. 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. 2020000630 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician for the Agency’s Nor-Central Carrier Station in New Orleans, Louisiana. On September 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases2 of sex (male), age (49), and reprisal for prior protected EEO activity when, on August 19, 2017, Complainant received a 7-Day No-Time Off Suspension dated August 17, 2017, for unacceptable conduct that occurred on July 27, 2017. The investigative record reflects the following pertinent matters relating to the subject claim. On July 27, 2017, the Transportation and Networks Manager (RMO1,3 female, under 40, unknown EEO) approached Complainant and informed him that she was going to conduct an attendance review. Complainant refused to do the attendance review at his open plan casing station. Complainant asserted that RMO1 demanded to do the attendance review at his casing station. Complainant informed RMO1 that he was again refusing and requested a union steward. RMO1 asserted that it was not a disciplinary review and that a union steward was not necessary. Complainant asserted that RMO1 refused to leave his casing station and was invading his personal space. He stated that he left and called both 911 and the Agency’s Postal Inspection Service Security Force. RMO1 asserted that Complainant loudly stormed off and attempted to file a false report against her. The local police and the Agency’s security force arrived shortly thereafter. The local police declined to write a report and stated that it was an internal matter that should not have involved the police. The Agency’s security force determined no action was required. On July 28, 2017, the Postal Inspection Service Security Force issued an Incident Report. The Report stated that a verbal altercation ensued when RMO1 requested to conduct an attendance review with Complainant. The Postal Inspection Service Security Force found no reason to issue citations or summons, and no other action was taken. On August 17, 2017, the Supervisor of Customer Service (RMO2, female, over 40, unknown EEO) issued Complainant a Letter of Warning when Complainant was found taking unauthorized pictures of RMO1. Then, on August 19, 2017, RMO2 issued Complainant the 7- Day No-Time Off Suspension. RMO2 noted that this was part of series of progressive disciplinary actions. RMO2 stated that the charge was based purely on Complainant’s behavior when RMO1 approached him to conduct a routine attendance review. The Manager of Customer Service (RMO3, male, over 40, unknown EEO) concurred with RMO2 regarding the disciplinary action. 2 Complainant alleged disability but later withdrew this basis during the Initial Status Conference. 3 Responsible Management Official (RMO). 2020000630 3 RMO1 stated that she did not provide input in the disciplinary action. RMO1 asserted that Complainant attempted to file a false police report. RMO1 noted that when the New Orleans Police Department arrived they found the allegations made by Complainant to be unfounded and false, and declined to write a police report. RMO1 noted that attendance reviews are routine. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 3, 2019, the Agency submitted a Motion for Decision Without a hearing. Complainant filed a timely response on May 20. 2019. After reviewing the record, the AJ assigned to the case determined that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on August 9, 2019. The AJ determined that Complainant failed to meet his burden of establishing a prima facie case of discrimination based on his protected classes or retaliation. Even if Complainant had, the AJ determined that the Agency provided legitimate, non-discriminatory and non-retaliatory reasons for its actions. Specifically, management attempted to conduct a routine attendance review and Complainant refused while responding in an inappropriate manner. Ultimately, the AJ issued summary judgment in favor of the Agency. On August 15, 2019, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant explains that he will provide information that was not addressed in a prior case4 that would demonstrate discrimination in his current complaint. We note that Complainant asserted on appeal that he would be providing information to support his appeal. Other than the general statement, Complainant did not provide any additional information. The Agency did not provide an appellate brief. 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 “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”). 4 We note that his prior case was the subject of Truman B. v. U.S. Postal Serv., EEOC Appeal No. 0120182184 (Sept. 6, 2018). In Appeal No. 0120182184, we affirmed the Agency’s decision to dismiss the matter for raising the same matter that was previously raised in a prior complaint. 2020000630 4 ANALYSIS AND FINDINGS Summary Judgment 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. Having considered Complainant's arguments in his opposition to the motion for summary judgment and on appeal, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. 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 a 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. 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. 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. 2020000630 5 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). With respect to Complainant’s disparate treatment claim, assuming arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. Here, RMO1 was conducting a routine attendance review. Complainant loudly refused to participate in the review and called the local police as well as the Agency’s security force. Both the local police and the Agency’s security force declined to proceed with any charges against RMO1. RMO2 issued Complainant the 7-Day No-Time Off Suspension based on his inappropriate response to a routine procedure. RMO3 concurred with the action. Upon review, the Commission finds that Complainant has failed to show by a preponderance of the evidence that the Agency was motivated by discriminatory or retaliatory animus when it engaged in the alleged discriminatory and retaliatory action. In so concluding, we have also found that Complainant has failed to show that the reasons articulated by the Agency were pretextual. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision 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. 2020000630 6 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. 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. 2020000630 7 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 24, 2021 Date Copy with citationCopy as parenthetical citation