[Redacted], Ellen M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionMar 8, 2023Appeal No. 2022001945 (E.E.O.C. Mar. 8, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001945 Hearing No. 420-2021-00215X Agency No. 4G-350-0007-21 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 January 12, 2022 final order concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s Northside Station in Dothan, Alabama. On January 27, 2021, Complainant filed (and later amended) a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and in reprisal for prior protected EEO activity when: (1) on September 30, 2020, Complainant was subjected to an investigative interview; and subsequently, she was issued a Letter of 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. 2022001945 2 Warning for Failure to be Regular in Attendance; and (2) on March 1, 2021, Complainant was put on Emergency Placement. With respect to claim (1), when Complainant returned after a three-day absence, Complainant’s supervisor (S1) called her in for an investigative interview on September 30, 2020. During the investigative interview, Complainant acknowledged that she lacked approved leave for September 23, 2020, to September 25, 2020. The Manager, Customer Services (S2) instructed S1 to investigate why Complainant was not reporting to work as scheduled. S2 stated that, at that time, they were short-handed and there was no one to replace her since she was the junior carrier. Complainant claimed that September 24, 2020, was one of her scheduled off-days. She stated that she had to be off on September 23, 2020, because she had to get paperwork filled out for childcare due to COVID-19. She stated she needed the entire day because her residence is in Florida, but her work location is in Alabama. She stated she had made management aware that she had two scheduled court days on September 24, 2020, and September 25, 2020. Complainant acknowledged she did not have approved leave for September 23, 2020, and September 25, 2020. Complainant stated “Emergencies happen. Court proceedings can happen.” Complainant alleged that no other carriers were being brought in for investigative interviews and issued discipline for being off on three consecutive days. She named another carrier whom she said had been off and not disciplined. Management stated that the identified comparator provided proper documentation for her absence. On October 14, 2020, S1 issued Complainant a Letter of Warning for Failure to be Regular in Attendance. The Letter of Warning cited the three days of absence. One of those days was one of Complainant’s regularly scheduled off-days, but she had been scheduled to work that day. Although she requested leave for the other two days, she was aware her request had been denied. S1 noted that Complainant was aware of her appointment in advance, but failed to submit a request for leave until after the schedule had been made. This resulted in Complainant incurring three unscheduled absences which led to the investigative interview and Letter of Warning. As to claim (2), the Postmaster testified that, on March 1, 2021, he received a telephone call from a towing company driver, who was responsible for moving vehicles at a housing complex located on Complainant’s route. The tow driver notified the Postmaster that Complainant engaged in an altercation with him while he was attempting to tow some cars from the parking lot. He added that officers from the Dothan Police Department and the Manager on Duty at the housing complex witnessed Complainant’s behavior. The Postmaster stated that he drove to the scene and spoke with the police officers and the Manager on Duty. He stated that, based on his initial investigation, he verbally notified Complainant that he was placing her on Emergency Placement that day. He testified that he provided Complainant with the reason for the Emergency Placement, which was Improper Conduct. The Postmaster stated that Complainant disputed his reason on the date in question and at an investigative interview. He stated that Complainant returned to work the following day. 2022001945 3 Complainant denied confronting the tow driver and claimed that she was being racially profiled by the tow driver and the Postmaster. Complainant alleged that the Postmaster never asked her for her side of the incident before he put her off the clock. He told her that she would be put on emergency placement for the rest of the day pending the investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Disparate Treatment 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, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited 2022001945 4 consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find the Agency articulated legitimate non-discriminatory reasons for its actions. Regarding claim (1), S1 explained that Complainant was subjected to an investigative interview and subsequently issued a Letter of Warning because she was absent three days without approved leave. Regarding claim (2), it was undisputed that the Postmaster had been called to respond to the tow driver’s accusation against Complainant and he put on her Emergency Placement for the remainder of the work day in order to allow management to look into the matter. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Aside from conclusory statements and her subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Finally, to the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2022001945 5 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we AFFIRM the Agency’s final order. 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. 2022001945 6 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. 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 March 8, 2023 Date Copy with citationCopy as parenthetical citation