[Redacted], Tyree L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2020004616 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyree L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004616 Agency No. 4G-335-0047-20 DECISION On August 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 29, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full time City Carrier at the Agency’s St. Petersburg Post Office in St. Petersburg, Florida. On January 24, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Hungarian), sex (male), color (White), and reprisal for prior protected EEO activity when: 1. on or about October 17, 2019, Complainant was issued a Notice of Removal (NOR) dated October 11, 2019, for Unsafe Act/Improper Conduct; and 2. on or about November 18, 2019, Complainant’s Prime Annual leave elections for November 23, 2019 through November 28, 2019, and December 21, 2019 through December 26, 2019, were disapproved. 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. 2020004616 2 The investigative record reflects the following pertinent matters relating to the subject claims. On September 3, 2019, Complainant was involved in an accident with a bicyclist while pulling through an intersection. The Agency’s vehicle was not damaged, but, due to the accident, the bicyclist had to go to the hospital. Complainant denied being at fault and claimed that the bicyclist had hit his truck instead. Complaint File (CF) at 237-49. A September 11, 2019, report from the St. Petersburg Police Department stated that Complainant was fined for running a stop sign and that the bicyclist had the right of way. CF at 259-61. The Acting Operations Specialist (Operations Specialist) stated that after the accident, Complainant was placed on Emergency Placement pending an investigation. CF at 165. On September 10, 2019, an investigative interview was held. Following the investigation, it was determined that Complainant should be issued a NOR for Unsafe Act/Improper Conduct. The Operations Specialist stated that Complainant was determined to be less than truthful to management when questioned about the incident and this factored into the decision to issue the NOR. CF at 166. The NOR was issued on October 11, 2019. CF at 262. The Manager of Customer Service Operations (Manager) concurred with the decision. CF at 178. Complainant later grieved the NOR and it was overturned. Complainant noted that there was a comparator (C1) (African-American, black, female, unknown EEO activity). The Operations Specialist noted that both individuals were operating Agency vehicles at the time of their respective accidents, and both were immediately placed off route and subject to investigation. CF at 167-68. However, C1 immediately admitted to fault, cooperated with the investigation. The Operations Specialist noted that the differences in circumstances factored into the action taken against C1. CF at 168. The Operations Specialist noted that another similarly situated employee (C2) (White, male, unknown race and EEO activity) was also terminated following an at-fault accident involving an Agency vehicle. CF at 168-69. On or about November 18, 2019, Complainant’s Prime Annual leave elections for November 23- 28, 2019, and December 21-26, 2019, were disapproved. Complainant asserted that the Operations Specialist and the Supervisor of Customer Services (Supervisor) were responsible for the denials. Complainant asserted that several employees who were non-White and/or female, were approved for leave requests while his requests were denied. The Operations Specialist stated that the Supervisor was unaware of proper protocols involving the approval and denial of Prime Annual leave elections. Specifically, the Supervisor did not know how the rotation worked as it pertained to seniority by zone. Based on the initial error, the Operations Specialist extended the leave election dates. CF at 171-72. Complainant’s requests for both the November and December dates were ultimately denied because the dates were already selected by other employees, some of whom were senior to Complainant. CF at 172-73. The Supervisor acknowledged her error in the protocols and that the Operations Specialist had to step in and assist her. CF at 203. The Supervisor acknowledged that she made a mistake in approving a leave request for a junior employee for the November dates, and noted that the Operations Specialist was upset at her errors and took over the process. CF at 203-5. 2020004616 3 The Supervisor noted that she believed she was granting/denying leave in accordance to protocol. The Supervisor denied being involved for the December dates. 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). When Complainant failed to notify the Agency of an election, the Agency issued a final decision on July 29, 2020, pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that the Agency subjected him to discrimination or retaliation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency erred in its analysis, failed to appropriately examine his claims, and acknowledge the comparators he alleged were treated more favorably. Complainant ends his appeal statement with a request for a hearing. The Agency did not provide an appellate statement. 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”). ANALYSIS AND FINDINGS As a preliminary matter, we acknowledge Complainant’s hearing request in his appeal. The Agency previously provided Complainant with a notice of his right to request a hearing before an AJ, however, Complainant failed to respond to that notice. For the first time on appeal, Complainant asked for a hearing. We find that Complainant’s request on appeal is untimely and will not be granted. 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 2020004616 4 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. Affs. 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. 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 claims, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In claim 1, Complainant was involved in a car accident in which the St. Petersburg Police Department determined Complainant to be at fault for running a stop sign and injuring a bicyclist. Following an internal investigation, management determined that Complainant’s conduct warranted a removal based on his less than truthful portrayal of the incident and for operating an Agency vehicle in an unsafe manner. Complainant argued that using the accident, which he asserted he was not at fault for, was pretext to issue the removal. He asserted that C1 was treated more favorably even though she was in a similarly involved in an at-fault vehicle accident. The record demonstrated that while C1 was also similarly involved in a car accident, she readily admitted fault and that admission factored into management’s decision on whether to discipline. It was C1’s actions during the investigation that distinguished her from Complainant’s situation, not because of her race, color, sex, or EEO activity. We also note that the Agency also demonstrated that another comparator, C2, was a similarly situated employee within Complainant’s protected classes who was also terminated for a similar at-fault vehicle accident. Complainant here has failed to provide sufficient evidence to support his arguments that the Agency’s articulated legitimate, nondiscriminatory reasons were pretext for discrimination or retaliation. Regarding claim 2, the record demonstrated that the Supervisor made errors in the granting of Prime Annual elections. As a result, the Operations Specialist took over the Prime Annual elections for everyone. Ultimately, the Operations Specialist denied Complainant’s requests due to timing, availability, and seniority. There was no evidence to establish that the Supervisor’s errors were based on Complainant’s protected bases or prior protected EEO activity. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, including terminations, on any basis except a basis that is unlawful under the discrimination statutes. 2020004616 5 See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). 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. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to demonstrate that management’s actions were motivated by discriminatory or retaliatory animus. 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 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). 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 2020004616 6 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. 2020004616 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 December 21, 2021 Date