[Redacted], Wilbert R. 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020000429 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbert R.1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000429 Hearing No. 550-2018-00120X Agency No. 1F-957-0046-17 DECISION On October 2, 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 29, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED This issue presented is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not unlawfully discriminated against on the bases of his race (African American), sex (male) and/or disability (pre-diabetic diagnosis) as alleged. 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. 2020000429 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Equipment Operator at the Agency’s Postal Processing and Distribution Center (P&DC) in Sacramento, California. On August 15, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), and/or disability (physical/pre- diabetic diagnosis) when: 1. management placed Complainant in an off-duty status on May 23, 2017, after he threatened physical violence against a coworker (C1); and 2. Complainant received a Notice of Removal (NOR) on July 13, 2017, after making false statements during the Agency's internal investigation into the prior incident. Complainant stated that his disability is prediabetes, a medical condition that Complainant asserted has no effect on the duties he can perform at work, has given him no restrictions, and has not imposed any limitations on his personal life. Record evidence indicated that the only impact of Complainant’s medical condition appears to be that on certain days, he has to use the bathroom more frequently; and he has to be sure to eat. 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 AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s July 20, 2018, motion for a decision without a hearing and issued a decision without a hearing on August 21, 2019. Following are the facts as stated in the Agency’s motion and as incorporated in the AJ’s decision: One morning in May 2017, Complainant, a union shop steward, allegedly told C1 that Complainant would knock C1’s name out of C1’s mouth. Complainant allegedly told C1 to meet Complainant at a 7-Eleven so Complainant could “kick C1’s ass.” When C1 threatened to go to the union, Complainant allegedly told C1, “come and see me.” When management learned of Complainant’s alleged conduct, they placed Complainant off work. After an investigation in which Complainant gave false answers, management issued Complainant a NOR. Regarding Claim 1, Complainant alleged that his second-level supervisor (S2) placed him on emergency placement in an off-duty status; and that his first-level supervisor (S1) and two other supervisors were the other management officials involved in the decision for Complainant’s placement on emergency placement in that status. Complainant stated that the reasons given for the placement were for making threats and failing to follow instructions. 2020000429 3 Complainant stated his disagreement with the reasons because there were no threats made, as he was in the “4040” room for over 2.5 hours and had not had a break since the start of his tour. He added that he is prediabetic so when and what he eats is very important and frequent trips to the restroom are necessary. Complainant also alleged that race was a factor in his placement on emergency placement status because no other employee was treated as badly as he was. Complainant alleged that sex was a factor because women in his area were treated better than he was. Complainant asserted his belief that his medical condition was a factor because S2 did not understand prediabetic behavior and Complainant had to use the restroom and needed to eat something. Complainant stated his belief that race was a factor because "they do not like African Americans" at the Sacramento P&DC; and that sex was a factor because "they do not like African American males" at the Sacramento P&DC. He asserted his belief that his medical condition was a factor because “they” do not want him being sick because he is African American. S2 affirmed Complainant’s allegations regarding the Emergency Status placement, adding that no other management official was involved in the decision. S2 stated that, consistent with applicable Agency policies, procedures, and the Collective Bargaining Agreement (CBA), he took the alleged action against Complainant for creating a hostile work environment; and that Complainant was provided a reason for being placed on emergency placement in an off-duty status. S2 stated that Complainant's protected classes were not factors in the Emergency Status placement decision. S1 provided supporting testimony, stating that Complainant was placed in an off-duty status for verbally threatening to cause bodily injury/harm to another employee, C1. Regarding Claim 2, Complainant alleged that S2 was the management official responsible for issuing him a NOR; and that S1 and another supervisor were other management officials involved in the decision to issue the NOR. Complainant stated that the reason given for issuing him the NOR was for unacceptable conduct and lack of candor. Complainant stated his disagreement with the reason because no threats were made and he fully cooperated. Complainant identified three comparators, all of whom were not supervised by S1, alleging that all three were treated more favorably than he was. Complainant also stated that one of the comparators is a spouse to a manager. The record reflected that two of Complainant’s comparators had received Seven-Day No-Time-Off Suspensions as discipline for misconduct; and that neither of the two employees was charged with lacking candor. Complainant also identified five additional comparators, none of whom were supervised by S1; and only two of whom were under S2’s upper management supervision. Complainant alleged that the five comparators received more favorable treatment when they got into an altercation at work; when they were “verbally abusive” to other employees; and when they got into an altercation over a portrait of the President, even though the last two comparators were placed off work and issued NORs for their conduct. 2020000429 4 S2 affirmed the decision to issue Complainant the NOR, reiterating that no other management officials were involved in the decision. S2 stated that, consistent with applicable policies, procedures, and contracts, Complainant was issued the NOR for creating a hostile work environment and Complainant was provided a reason for being issued a NOR. S2 asserted that Complainant's protected classes were not factors in the NOR decision. S1 provided supporting testimony, stating that Complainant was issued the NOR for making verbal threats to C1, and making C1 feel unsafe. The AJ adopted the Agency’s unopposed July 20, 2018 motion. The AJ found that the instant complaint lacked any factual support whatsoever; that Complainant's own repeated misconduct resulted in ordinary, unremarkable and utterly foreseeable consequences; and that the record revealed no evidence of unlawful Agency conduct towards Complainant on the basis of any discriminatory factor. The AJ explained that even Complainant's own account of relevant events merely indicated, at most, that he disagreed with management's reasonable, lawful exercise of its broad discretion in determining the appropriate disciplinary response to Complainant’s own pattern of repeated misconduct. The AJ also adopted the Agency’s motion position that Complainant's beliefs or feelings were not evidence of discriminatory motive. Complainant presented a list of purported comparators, but the AJ found that these individuals were not similarly situated. In addition, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions. The AJ stated that Complainant also failed to demonstrate pretext by asserting unfairness or error. The AJ concluded that Complainant's subjective belief and speculation, without evidence as to motive, was not sufficient to defeat summary judgment. The AJ determined that a hearing was not warranted. 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. CONTENTIONS ON APPEAL In his two Appeal Letters, Complainant indicates that during the investigation into his case, the Agency relied on the testimony of an unreliable witness, whom, Complainant alleges, it had treated more favorably by reducing the witness’s discipline in exchange for his testimony against Complainant. In its Appeal Opposition Statement, the Agency argues that even if Complainant’s assertions were true, the Agency would have still prevailed at a hearing; and indicates that the AJ was correct in granting its motion for a decision without a hearing. The Agency asks that the Commission deny Complainant’s appeal. 2020000429 5 STANDARD OF REVIEW 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. 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”). ANALYSIS AND FINDINGS AJ’s Decision Without a Hearing 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. In reviewing the AJ’s decision to grant the Agency’s motion for a decision without a hearing, we must draw all justifiable inferences in Complainant’s favor. We carefully reviewed the record in the instant complaint and find that the AJ correctly concluded that summary judgment was appropriate. 2020000429 6 Disparate Treatment The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined 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. He must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, 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). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show 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, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Assuming Complainant established his prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the actions at issue. Specifically, management stated that they had received reports that Complainant had engaged in misconduct by threatening physical harm against C1; that Complainant demonstrated defiance for management’s authority to hold him accountable for the misconduct by leaving a meeting room in which Complainant had been instructed to remain; and that Complainant had demonstrated a lack of candor by providing false information when he was questioned about these incidents. Complainant presented no evidence to refute management’s stated reasons. Neither does he indicate that he had asked management for bathroom breaks or time to eat but was not allowed to do either or both. Notably, Complainant’s sole contention appears to be that the Agency relied on the testimony of an unreliable witness, whom, Complainant alleged without evidence, it had treated more favorably by reducing the witness’s 14-day suspension to seven days in exchange for the witness’s testimony against Complainant. Complainant has, however, failed to demonstrate that he was treated less favorably than any similarly situated coworker under similar circumstances as the comparators he identified, including the said Agency’s witness with whom Complainant appears to take issue, who did not engage in the same misconduct as Complainant. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that, in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. We, therefore, find that Complainant has failed to prove that he was subjected to discrimination as alleged. 2020000429 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order adopting it. 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). 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. 2020000429 8 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 January 13, 2021 Date