[Redacted], Xavier P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 7, 2021Appeal No. 2020002539 (E.E.O.C. Sep. 7, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Xavier P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002539 Agency No. 4G-330-0190-19 DECISION On February 9, 2020, 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 January 7, 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 REVERSES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency correctly determined that Complainant was not discriminated against based on retaliation (prior EEO activity) as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Sales & Services Associate at the Agency’s Homestead Station Branch in Florida City, Florida. On June 24, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil 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. 2 2020002539 Rights Act of 1964 when, on January 19, 2019, Complainant was denied a non-scheduled (NS) overtime opportunity.2 Complainant indicated that on January 18, 2019, his supervisor (S1) instructed him not to come into work for NS overtime despite being scheduled to work that day. Complainant alleged that his Manager (M1) instructed S1 to inform Complainant that Complainant could not report for the NS overtime on the date at issue. Complainant listed two comparators (C1 and C2) noting that they worked overtime on January 19, 2019, their non-scheduled days. Complainant also alleged that two other coworkers (C3 and C4) had been treated more favorably because they were not denied overtime. Complainant asserted that his prior EEO activity was a factor in the alleged management action due to the continued pattern that has been ongoing for years, which allegedly included harassment. S1 averred that he had Complainant scheduled to work NS overtime on January 19, 2019. S1 stated that he had “1 clerk on prime time annual leave,” indicating that he had someone out on leave. Therefore, S1 added, he was working his other three clerks, including Complainant, on their NS day. S1 confirmed that M1 had instructed S1 to inform Complainant not to report for non- scheduled overtime on the date at issue. S1 stated that he was able to work C1 and C2. S1 indicated that because of bringing them on, he did not have enough credit, indicating that he did not have enough work to go around. S1 stated that he “had earned enough credit from the volume and window factions to justify bringing them in on their NS day. Saturday, I did not have enough credits earned from prior week to justify the overtime.” Further, S1 stated that he was instructed by M1 that he could not work Complainant. M1 failed to provide an affidavit or a supplement affidavit when requested by the Investigator to do so. Record evidence reflects that Complainant has engaged in prior EEO activity as he has filed numerous prior EEO complaints. One of Complainant’s prior EEO filings which was closed on August 15, 2017, had named M1 as the Responding Management Official (RMO). Complainant had a complaint pending in the EEO process at the time he filed the instant complaint. Additionally, both S1 and M1 were aware of Complainant’s prior EEO activity. 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 Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 Complainant noted on his formal complaint that there were additional dates on which he was denied unscheduled overtime. However, during the investigation, Complainant only addressed the denial of overtime on January 19, 2019. 3 2020002539 CONTENTIONS ON APPEAL Neither Complainant nor the Agency submitted Appeal Statements. 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 (EEO MD- 110), 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. 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, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In order to establish a prima facie case of discrimination for an allegation of reprisal, Complainant must show: 1) that he engaged in protected activity, (e.g., participation in a EEO proceeding as a witness); 2) that the alleged discriminating official was aware of the protected activity; 3) that he was disadvantaged by an action of the Agency contemporaneously with or subsequent to such participation; and 4) that there is a causal connection, or nexus, between the protected activity and the adverse employment action. Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff ‘d,545 F.2d 222 (151 Cir. 1976). 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. 4 2020002539 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). Here, Complainant met element 1 of his prima facie case of reprisal because he had filed numerous EEO complaints. Complainant meets element 2 because both S1 and M1 were aware of Complainant’s prior EEO activity and M1 was named as RMO in one of Complainant’s EEO filings. Complainant also meets element 3 because complainant did not work NS overtime on January 19, 2019. Therefore, he was subject to adverse employment action. Complainant asserted that his prior EEO activity was a factor in the alleged management action due to the continued pattern that has been ongoing for years. Furthermore, Complainant had a complaint pending in the EEO process at the time he filed the instant complaint. Therefore, we find that Complainant established a prima facie case of discrimination based on reprisal. We also find that the Agency has not articulated any legitimate, nondiscriminatory reasons for the alleged management action. S1 stated that he asked Complainant to do overtime along with C1 and C2. S1 also confirmed that M1 had instructed S1 to inform Complainant not to report for NS overtime on the date at issue. S1 did not explain why C1 and C2 were allowed to work overtime while Complainant, who S1 had asked to work NS overtime, was not. In fact, C2 also worked NS overtime the following Saturday, January 26. ROI at 125. Therefore, S1’s statements do not provide adequate justification to explain why Complainant was told not to work NS overtime while C1 and C2 were permitted to work NS overtime. Notably, a review of the record reflects that M1, who is obligated to comply with the investigation, did not submit an affidavit even though there is documented evidence indicating she was compelled to do so several times.3 See 29 C.F.R. § 1614.108(c)(1). The Agency also noted that M1 did not provide a rationale for instructing S1 to tell Complainant not to report for NS overtime on the date in question. Therefore, we find that the Agency failed meet its burden. As the Agency has not articulated legitimate, nondiscriminatory reasons for the decision to exclude Complainant from the NS overtime; and as the record shows that Complainant established his prima facie case of retaliation, we find that the Agency failed to overcome its burden. Therefore, Complainant prevails without having to prove pretext. Chhe v. Dep’t of Hous. and Urban Dev., EEOC Request No. 0720090008 (Aug. 6, 2010) (the consequence of an agency’s failure to meet its burden of production under McDonnell Douglas is that the complainant, having established a prima facie case, prevails without having to make any demonstration of pretext), request for recon. den., EEOC Request No. 0520100584 (Jan. 27, 2011). As a result of the Agency’s failure to meet its burden of production, we find that Complainant has established that he was subjected to unlawful retaliation when he was not permitted to work NS overtime on January 19, 2019. 3 We note the ROI contains the Investigator’s note indicating that M1 was asked to provide an affidavit on August 11, 2019, via USPS Priority Mail, and M1 failed to return her affidavit. 5 2020002539 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the final Agency decision finding no discrimination regarding Complainant’s reprisal claim. We REMAND the matter to the Agency for compliance with the remedies specified in the ORDER herein. ORDER (C0618) The Agency is ordered to take the following remedial action: 1. Within 60 days of the date this decision is issued, the Agency shall determine and award the amount of pay and other benefits Complainant lost as a result of being denied NS overtime on January 19, 2019. 2. Within 60 days of the date this decision is issued, the Agency shall provide 8 hours of in-person or interactive EEO training for S1 and M1 on Title VII. The training shall emphasize the Agency’s obligations under Title VII with respect to acts of retaliation against employees who have engaged in prior EEO activity. 3. Within 60 days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1 and M1. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency’s employment, then the Agency shall furnish documentation of their departure date(s). 4. Within ninety (90) days of receipt of this Order, the Agency shall conduct a supplemental investigation to determine whether Complainant may have claims of compensatory damages, if any. The Agency shall allow Complainant to present evidence in support of such compensatory damages claims. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than thirty (30) days after the completion of the investigation. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 6 2020002539 POSTING ORDER (G0617) The Agency is ordered to post at its Homestead Station Branch facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 7 2020002539 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 8 2020002539 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 September 7, 2021 Date Copy with citationCopy as parenthetical citation