Bryan R.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 14, 2020

2020000545 (E.E.O.C. Sep. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000545 Agency No. 1F-927-0002-19 DECISION On September 11, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Postal Support Employee (PSE) Mail Processing Clerk at the Agency’s Anaheim Processing and Distribution Center in Anaheim, California. On December 26, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him in reprisal for prior protected EEO activity (Agency No. 1F-927-0063-18) when, on October 5, 2018, he was issued a 7-Day Suspension. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC 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. 2020000545 2 Administrative Judge or a final decision within thirty days of receipt of the correspondence.2 Complainant did not respond. In its August 26, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; 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. See Texas Department of Community 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. See St. Mary’s Honor Center 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 the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Supervisor Distribution Operations (“supervisor”) was the deciding official to suspend Complainant for 7 days for failure to maintain regular attendance, and the Manager was the concurring official. The record contains a copy of Complainant’s October 3, 2018 7-Day Suspension. Therein, the supervisor placed Complainant on notice that he would be suspended for 7 days effective November 3, 2018. Specifically, the supervisor stated that Complainant was absent on the following dates: Date Hours/Units Leave Type 8/25/18 8 hours Unscheduled Sick Leave Without Pay 2 The record reflects that during the investigation, Complainant did not submit an affidavit. 2020000545 3 8/21/18 8 hours Unscheduled Emergency Annual Leave 8/19/18 2 hours Unscheduled Sick Leave Without Pay 7/29-7/30/18 16 hours Unscheduled Annual Leave in lieu of Sick Leave 6/24/18 8 hours Unscheduled LWPE 6/16/18 8 hours Unscheduled Emergency Annual Leave The supervisor stated that on September 14, 2018, he conducted an investigative interview with Complainant concerning his irregular attendance and they discussed attendance rules and expectations. He noted that Complainant claimed he was sick on July 30, 2018 but he did not remember the reason for any of the other absences. The supervisor determined that Complainant violated Section 511.41 “Unscheduled Absence.” Section 511.43 Employee Responsibilities,” 513.331 “General,” 665.41 “Requirement of Regular Attendance,” “Absence Without Permission” and 665.11 “Loyalty” of the Employee and Labor Relations Manual. In addition, the supervisor took into consideration of Complainant’s Letter of Warning dated February 23, 2018 for failure to follow instructions. He stated “I hope that this suspension will serve to impress upon you the seriousness of your actions and that future corrective action will not be necessary…however, I must warn you that future deficiencies will result in more severe corrective action being taken against you. Such actions may include suspensions or removal from the Postal Service.” After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the responsible management official’s proffered legitimate, non-discriminatory reasons for the disputed action was actually pretext designed to mask discrimination. Beyond his bare assertions, Complainant provided no evidence that his retaliatory animus played any role in this event. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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. 2020000545 4 Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020000545 5 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 14, 2020 Date