[Redacted], Jordon S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 12, 2020

Appeal No. 2019002440 (E.E.O.C. Feb. 12, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jordon S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019002440 Agency No. 4J-530-0070-18 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 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 At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Post Office in Glenview, Illinois. Report of Investigation (ROI), at 6. On August 2, 2017, Complainant was issued a Last Chance Agreement (LCA) dated July 28, 2017, to resolve a Notice of Removal issued to Complainant on July 5, 2017. ROI, at 117-119. The LCA noted that Complainant agreed that he would have no more than three unscheduled absences in a six-month period, and he would be subject to removal if he violated the agreement. Id. On February 5, 2018, Complainant was issued with a second Notice of Removal for an apparent violation of the LCA. Id. at 114-116. In the removal, Complainant was cited with six instances of unscheduled leave from August 25, 2017, through December 1, 2017, and one hour of tardiness on January 24, 2018. Id. 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. 2019002440 2 On June 30, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black), and in reprisal for prior protected EEO activity when on or around March 9, 2018, he was issued a Notice of Removal.2 Following 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). 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 on November 13, 2018, 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. The Agency specifically found that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not establish that its reasons were pretextual based on his protected classes. Complainant thereafter apparently requested a hearing on December 20, 2018, after the Agency issued its final decision on November 13, 2018. The assigned AJ dismissed Complainant’s hearing request on April 11, 2019, for being untimely pursuant to 29 C.F.R. § 1614.108(f). On appeal, Complainant maintains that management violated his rights under the Family Medical Leave Act (FMLA), and that the Agency deleted documentation from its files in attempt to conceal its conduct. Complainant further maintains that his hearing request was timely, as he submitted his request on September 8, 2018. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency also asserts that the AJ properly dismissed Complainant’s hearing request, which was untimely in accordance with 29 C.F.R. § 1614.108(f).3 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). 2 In his complaint, Complainant stated that the Notice of Removal was issued on or about March 9, 2018. However, the record reflects that it was issued to Complainant on February 5, 2018. 3 We find insufficient evidence establishing that the AJ incorrectly dismissed Complainant's hearing request as untimely. Although Complainant contends that he timely submitted a hearing request to the Commission’s Chicago District Office, we find insufficient evidence showing that he timely made his request. Therefore, we shall adjudicate the Agency’s final decision. 2019002440 3 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”). ANALYSIS AND FINDINGS 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 (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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his protected classes, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, that Complainant violated the terms of the LCA dated July 28, 2017, when he accumulated six incidents of unscheduled absences from August 25, 2017, through December 1, 2017, and one hour of tardiness on January 24, 2018. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency reasons for his removal were pretextual or were motivated by unlawful discriminatory animus. In so finding, we note that there is no dispute that Complainant was late or absent on the days cited by the Agency in the Notice of Removal. There is simply no evidence in this case that the Agency removed Complainant based on his protected classes. To the extent that Complainant claims the Agency violated the FMLA, we note that the FMLA falls under the regulatory ambit of the Department of Labor, not the Commission. Therefore, the Commission has no jurisdiction over this type of claim. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sep. 26, 2012). 2019002440 4 CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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. 2019002440 5 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 February 12, 2020 Date