[Redacted], Wiley W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020000616 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wiley W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000616 Hearing No. 420-2019-00116X Agency No. 4G-390-0052-18 DECISION On August 23, 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 July 25, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to unlawful disparate treatment discrimination based on race (Caucasian), sex (male), and retaliation (prior EEO activity), regarding mandated overtime work. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full Time Letter Carrier Craft employee at the Agency’s Post Office in Brandon, Mississippi. 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. 2020000616 2 On May 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on December 30, 2017, management forced him to work overtime. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) 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 June 12, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 16, 2019. 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. Record evidence indicated that when needed, overtime work for full-time employees was scheduled among qualified employees doing similar work. Employees who wanted to work overtime voluntarily placed their names on an Overtime Desired List (OTDL). If the OTDL did not provide sufficient qualified people for overtime work, other qualified full-time employees who were not on the list could be mandated to work overtime. Complainant’s supervisor (S1) explained that, on December 30, 2017, the Brandon Post Office had 12 Full Time Letter Carrier Craft employees. Four of those employees were on leave or were on a regular non-scheduled day on the date at issue. That same day, management mandated the four employees, including Complainant, to work overtime. Besides Complainant, the four employees included a Caucasian male and two females, one of whom was Hispanic. None of the four employees was on the OTDL list. Complainant asserted that his race and sex were factors in management’s decision to mandate overtime because S1 was African-American and female. Complainant also argued that his prior EEO activity was a factor in management’s decision to mandate overtime because a prior EEO award was processed during S1’s tenure. S1 denied that Complainant’s race, sex, or prior EEO activity were factors in her decision to assign overtime on the date at issue. The AJ stated that Complainant could not establish a prima facie case of disparate treatment discrimination based on his protected classes because management also mandated other similarly situated employees at the Brandon Post Office who were outside Complainant’s protected classes to work overtime on December 30, 2017. The AJ asserted that Complainant had not provided, and the investigation did not uncover, any direct evidence that management made any decision or took any action based on Complainant’s prior EEO activity. The AJ stated that there was no evidence of slurs, degrading comments, or even the mere mention of Complainant’s EEO activity surrounding the overtime assignment at issue. 2020000616 3 The AJ also stated that Complainant failed to establish that there was a causal connection between his prior EEO activity and being mandated to work overtime on the date at issue, asserting that three other employees who had no prior EEO activity were also assigned to work overtime that same day. The AJ found that, even if Complainant had established a prima facie case of discrimination, the Agency had articulated legitimate, non-discriminatory reasons for its actions; and that Complainant had failed to show that the Agency’s reasons were a pretext for unlawful employment discrimination, asserting that Complainant’s disagreement with the Agency’s rationale for assigning overtime was insufficient to establish pretext. The AJ concluded that Complainant had not pointed to real evidence in the record showing a genuine issue as to whether the reasons offered by the Agency were pretextual; and that Complainant did not offer any evidence, other than his own subjective beliefs, that the alleged Agency actions were due to his race, sex or in retaliation for prior EEO activity. The instant appeal followed. CONTENTIONS ON APPEAL There are no contentions on appeal. 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”). 2020000616 4 ANALYSIS AND FINDINGS 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 carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. After a careful review of the record in the instant complaint, we find that the AJ correctly concluded that Complainant was not subjected to discrimination on the bases of his race, sex, or in reprisal for his prior EEO activity of which management was aware. 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). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found, for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. Texas 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 Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 2020000616 5 Here, we find that Complainant failed to establish a prima facie case of discrimination as he has not provided any evidence or facts that give rise to an inference of unlawful discrimination based on his race, sex, or prior EEO activity. Notably, Complainant has failed to show that he was treated less favorably than a non-Caucasian similarly situated female employee under similar circumstances. Moreover, even if he had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the mandated overtime at issue. Specifically, S1 indicated that staffing shortages on December 30, 2017, at the Brandon Post Office caused management to mandate overtime to Full Time Letter Carrier Craft employees. Record evidence demonstrates that Complainant was one of four employees mandated to work overtime on the date at issue; and that the other three employees, including two females were outside of Complainant’s protected classes. In addition, they were, like Complainant, not on the OTDL. Complainant asserted that his race and sex were factors in management’s decision to mandate overtime because S1 was African-American and female. However, while S1 was female, there is no evidence that her actions were motivated by that factor. In the same vein, there is no evidence that Complainant’s prior EEO activity, of which S1 was aware, played any role in her decision to mandate overtime as Complainant argued. Nor did Complainant show a nexus between his prior EEO activity and the mandated overtime work. 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020000616 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, 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. 2020000616 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation