Cristopher N.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2019004030 (E.E.O.C. Sep. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cristopher N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019004030 Hearing No. 440-2018-00292X Agency No. 4J-604-0006-17 DECISION On May 15, 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 April 11, 2019, 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, PS-01, at the Agency’s Oak Park South Post Office facility in Oak Pak, Illinois. Complainant filed an EEO complaint alleging that the Agency discriminated against him through harassment on the bases of race (African-American), sex (male), and in reprisal for prior protected EEO activity when: 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. 2019004030 2 1. On October 4, 2016, his supervisor threatened him physically and placed him on Emergency Placement; and 2. On October 25, 2016, he was issued a Notice of Removal. On June 7, 2017, the Agency dismissed the formal complaint as untimely. Complainant appealed, and the Commission subsequently reversed and remanded the complaint for processing. Johnson P. v. U.S. Postal Serv., EEOC Appeal No. 0120172530 (Nov. 28, 2017). Before the investigation of claims 1 and 2 concluded, in February 2018 Complainant sought EEO counseling again, alleging that the Agency discriminated against him through harassment on the bases of race (African-American), sex (male), disability (unspecified), and in reprisal for prior protected EEO activity when: 3. On or around February 6, 2018, he received a five-day absence notice; 4. On or around February 18, 2018, he discovered that he was denied 48 hours of sick leave in his paycheck for February 23, 2018; and 5. Management did not comply with a grievance settlement dated January 5, 2018. The Agency issued a letter of acceptance and dismissal on March 6, 2018, finding that claims 3-5 were like or related to the matters raised in claims 1 and 2 and amending the formal complaint to include them, pursuant to 29 C.F.R. 1614.106(d). The Agency also dismissed claim 5 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant responded in writing, objecting to the processing of the claims together and challenging the dismissal of claim 5, and subsequently refused to participate in the investigation of claims 3-5. 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 Administrative Judge (AJ). Complainant requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant contests the processing of both complaints on various procedural grounds, arguing that the investigation was inadequate and inappropriately delayed, that the hearing process was inappropriately delayed, and that consolidation was improper. Complainant also challenges the dismissal of claim 5 as improper, arguing that the allegation of failure to pay 8 hours at an overtime rate was similar to the denial of sick leave accepted in claim 4. Finally, Complainant contends that the stated reasons for the actions taken by S2, S3, S4, and S5 in claims 1-4 were pretextual. 2019004030 3 ANALYSIS AND FINDINGS 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”). We find that the Agency’s investigation was both timely and adequate. The Commissions’ Order in the previous appeal required the Agency to complete its investigation on or before April 27, 2018; the record shows that the Report of Investigation was transmitted to Complainant on April 27, 2018. We also find no evidence of improper delay by the AJ. We note that the certificate of service indicates Complainant’s representative was served with the Order of Dismissal by e-mail at his correct e-mail address of record on January 28, 2019. We find that Complainant fails to explain whether and how he was prejudiced by the processing of claims 3 and 4 with claims 1 and 2. We note that Complainant was notified of his right to request a hearing and that he did, in fact, exercise this right before subsequently withdrawing his request. Claim 5 In claim 5, Complainant alleges that he was discriminated against when the Agency failed to comply with the terms of a grievance settlement. The Commission has held that an employee may not use the EEO process to obtain compliance with a grievance settlement; such a complaint is outside the purview of the EEO process and will be dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Harlan P. v. U.S. Postal Serv. (Great Lakes Area), EEOC Appeal No. 0120170928 (April 18, 2017) (citations omitted). Accordingly, we find that the Agency properly dismissed claim 5 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Claims 1 and 2 The Agency claims that the supervisor did not threaten Complainant and that Complainant was put on emergency placement because of threats made by Complainant to the supervisor. Complainant has not persuasively shown that the Agency is incorrect in finding that only threats were made by Complainant and no threats were made by the supervisor. Furthermore, Complainant has not shown that similarly situated individuals were treated differently for similar actions. We note that some of the comparative employees cited by Complainant as being treated better than Complainant are of the same race and sex as Complainant. The Notice of Removal was based on the conduct at issue in Claim 1. We find that Complainant has not shown that the Notice of Removal was motivated by discrimination. 2019004030 4 The comparatives noted by Complainant either were of the same protected class, had a different responsible official deciding to issue the discipline, and/or engaged in conduct less severe than Complainant (such as a lack of profanity). Claims 3 and 4 The record shows that Complainant declined to participate in the investigation, comply with the investigator’s request, or provide an affidavit in support of his allegations in Claims 3 and 4. The record is otherwise devoid of evidence to support that Complainant was subjected to unlawful harassment as alleged in these two claims. S2 states in her affidavit that Complainant had not timely submitted the required medical documentation to receive pay for the absences at issue in Claims 3 and 4; she further contends that Complainant was ultimately paid for those absences. S2 denies that the actions taken were because of Complainant’s race, sex, purported disability (of which S2 denies knowledge), or prior protected EEO activity. In the absence of an affidavit from Complainant or other supporting testimony or documentation, Complainant has not met his burden to show by a preponderance of the evidence that he was discriminated against in Claims 3 and 4. CONCLUSION We AFFIRM the final decision issued by the Agency. 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. 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. 2019004030 5 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. 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 17, 2020 Date