Darrin F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 11, 2020

2019002279 (E.E.O.C. Aug. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2019002279 Hearing No. 480-2013-00361X Agency No. 1F-901-0067-12 DECISION 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 December 17, 2018 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 AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Mail Handler, PS-04, at the Agency’s Processing and Distribution Center in Los Angeles, California. On July 20, 2012, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), national origin (American), sex (male), color (Black), and in reprisal for prior protected EEO activity when, on May 2, 2012, he was given a Notice of Proposed Removal dated April 30, 2012; and subsequently on July 31, 2012, he was issued a Letter of Decision upholding the proposed removal. 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. 2019002279 2 Complainant identified the Supervisor of Distribution Operations (SDO), the Lead Manager for Distribution Operations (LMDO), and the Lead Senior Manager (LSM) as the responsible management officials. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the report of investigative report and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).2 Complainant timely requested a hearing but on November 19, 2018, he 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 or reprisal as alleged. On August 31, 2010, Complainant and the Agency entered into a settlement agreement before the Merit Systems Protection Board. Under the terms of the settlement, referred to as a “last chance agreement,” a proposed notice of removal issued on June 4, 2010 would be held in abeyance for two years. At the end of this probationary period, the proposed removal would be rescinded if Complainant adhered to the Agency’s rules and regulations and conducted himself in the manner expected of an Agency employee. The agreement stipulated that unacceptable conduct during the probationary period would result in termination of Complainant’s employment and removal from the Agency. IR 149, 153, 268-74. On May 2, 2012, the SDO issued Complainant a notice of proposed removal dated April 30, 2012. The charge specified in the notice was that Complainant had violated the last chance agreement by defying the orders of his supervisor to report to his assignment at 11:00 p.m. on April 5, 6, and 7, 2012, and for refusing to appear at an investigative interview scheduled for April 11, 2012. According to the SDO, Complainant’s refusal to obey his supervisor’s orders were in violation of sections 665.13, 665.15, and 556.16 of the Agency’s Employee and Labor Relations Manual which, in turn, constituted a violation of the provision of the last chance agreement requiring Complainant to adhere to the Agency’s regulations. IR 155-58, 208-09, 214-15, 219-24, 261-67, 275-81, 306-07. The Acting Manager of Distribution Operations concurred in the proposed removal, finding that the evidence presented to support the proposal established that Complainant had failed to follow supervisory instructions on more than one occasion, and consequently, had violated the last chance agreement. IR 233. In response to Complainant’s assertion that he was the only union steward required to report for work according to specific schedules, the LMDO, in a letter to Complainant dated June 6, 2012, noted that three other union stewards were required to report to their assigned duty stations at specific times, and that several other supervisors had reported having behavioral issues with Complainant. IR 203, 228, 308. 2 The Agency initially processed Complainant's EEO complaint as a mixed case with appeal rights to the Merit Systems Protection Board (MSPB). When the MSPB dismissed Complainant's appeal for lack of jurisdiction, the Agency issued Complainant notice of the right to request a hearing before an EEOC AJ. 2019002279 3 On July 31, 2012, the LMDO issued a decision upholding the proposed removal, finding that the charge of violating the last chance agreement was fully supported by the evidence. IR 227, 318- 22. ANALYSIS AND FINDINGS 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, 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”). Disparate Treatment 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, 802 (1973). His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the SDO and the LMDO had articulated a legitimate and nondiscriminatory reason for terminating Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Namely, Complainant violated the terms of his last-chance agreement by refusing to comply with his supervisor’s orders to report to his assignment in April 2012. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). 2019002279 4 When asked what he believed the real reasons were for his termination, Complainant made the following reply: I disagree with the reason, one my last chance agreement had nothing to do with me being a union steward. *** Management did not like me filing grievances against them so they made up this lie that I was performing too much union time. No steward prior to me ever had a scheduled union time especially a written schedule.” IR 127. As previously noted however, three other stewards all stated that they had to report for duty at specified times. To the extent that Complainant is arguing that the real reason for the removal was his union activity the Commission notes that Commission precedent makes it clear that union activity is not a protected basis under the statutes we enforce. Elston v. Dep’t of Def., EEOC Appeal No. 01982683 (Mar. 3, 1999). In the alternative, Complainant does argue that his race, color, national origin, sex, and previous EEO activity were factors in his termination. He asserts that the officials who engineered his termination did not have a problem with a female union steward (C1) not reporting for duty on time. IR 129-31. He also provides handwritten statements from several coworkers that were submitted during the internal investigation preceding the removal action. These individuals all wrote that C1 was treated differently. C1 herself responded in her own written statement that she had been a shop steward for 13 years and during that entire time, she always complied with her supervisor’s instructions to report to her assigned duty station on time. IR 346. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Apart from these statements, Complainant has presented neither affidavits, declarations, or unsworn statements nor documents that contradict or undercut the explanations provided by the SDO, the LMDO, and the LSM for terminating him, that establish the existence of at least one of the indicators of pretext listed above, or which cause us to question the veracity of the SDO, the LMDO, or the LSM as witnesses. We therefore concur with the Agency in finding that Complainant has not presented enough evidence to establish the existence of an unlawful discriminatory or retaliatory motivation on the part of any of these officials in connection with Complainant’s termination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 2019002279 5 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. 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. 2019002279 6 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 August 11, 2020 Date