[Redacted], Patricia B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Nov 22, 2022

Appeal No. 2022004216 (E.E.O.C. Nov. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patricia B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004216 Hearing No. 550-2021-00286X Agency No. 1E-981-0031-20 DECISION On July 27, 2022, 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 July 6, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian, P-04 at the Agency’s Processing and Distribution Center in Seattle, Washington. On October 8, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American/B), sex (female), age (56 years), and reprisal for prior protected EEO when, on July 22, 2020, she received a Notice of Removal for Unacceptable Conduct. 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. 2022004216 2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. On July 22, 2020, Complainant received a Notice of Removal for Unacceptable Conduct (Notice) stating that she misrepresented her work hours. The Notice described that Complainant did not report to work on April 7, 2020, or May 6, 2020, and filled out paper timecards, indicating that she had worked the night shift on those days so that she could “receive sixth day overtime.” The Notice described that there was evidence that Complainant did not work on April 7, 2020, or May 6, 2020. For instance, Complainant did not submit worksheets showing that she had completed work on April 7, 2020, or May 6, 2020. In addition, All Access Attempt records revealed that all custodial employees, except Complainant badged in or out of door on the days in question. Furthermore, the Notice stated that Complainant used her badge 11 times during the week of April 7, 2020, and 13 times during the week of May 6, 2020, but failed to use her badge and the electronic badge reader (EBR) on April 7, 2020, and May 6, 2020. The Notice stated that an investigative interview was conducted, and Complainant admitted that she filled out a timecard for the days in question, but when she was asked why she did not complete a worksheet showing the work that she had performed on the days in question, she replied, “no answer for that.” Contrary to the Notice, Complainant contended that she worked on April 7, 2020, and May 6, 2020. She maintained that the Former Supervisor asked her to fill out a paper timecard for April 7, 2020, and May 6, 2020, because she did not have her badge on those days. Complainant refuted the allegation that she did not complete worksheets on the days in question. She stated that she filled out worksheets and submitted them to the Former Supervisor and rationalized that they may be missing from the record since management has been known to misfile and lose worksheets. And she stated that she was able to enter the facility on those days because the door does not lock. Two months after receiving notice of misrepresenting her work hours, Complainant signed a statement declaring that the Former Supervisor instructed her to submit the timecards in question, and she “unknowingly” “misrepresented” herself. Complainant later retracted the statement. She described that the Union President wrote the statement to throw her “under the bus” and she signed it under duress. Complainant explained that the Union President was in a hurry and pressured her to sign it on the same day that her grandson had been shot. Complainant lamented that she would have signed anything “to get out of there.” Complainant identified the Tour Manager, as the discriminating official who made the decision to issue the Notice for unacceptable conduct. She stated that the Tour Manager used the Notice to retaliate against her for filing a prior EEO claim. Complainant contended that her race was a factor in his decision to issue the Notice. She explained that even though she and the Tour Manager are both African American, the Tour Manager had a problem with his own race because he hassled African American employees and treated White employees more favorably. 2022004216 3 Complainant contended that her sex was also factor because she was his “only female [employee] and black at that.” Lastly, she stated that her age was a factor, because she is not as “fit and able to do as much as she could do as much as she could before.” The Tour Manager (African American, male, 56 years) testified that he was not the management official who made the decision to issue the Notice. Rather, the Acting Manager and Lead Manager made the decision. The Acting Manager (White, male, 42 years) and Lead Manager (African American, male, 58 years) confirmed that the Acting Manager made the decision to issue the Notice. The Lead Manager concurred with the Acting Manager’s decision. Both managers stated that Complainant’s protected bases did not play a role in the decision to issue the Notice, and that they were unaware of Complainant’s race, age or prior EEO activity. The Acting Manager testified that he made the decision to issue the Notice because there was evidence that Complainant had been paid for work that she did not perform. The Acting Manager explained that Complainant’s Former Supervisor was under investigation for an unrelated incident, and it was brough to his attention that the Former Supervisor had been paying Complainant at a “higher level for work that she was not performing.” This prompted the Acting Manager to examine Complainant’s timecards and badge usage. The Acting Manager stated that Complainant had submitted multiple paper timecards for days that she was scheduled to be off work, and on those days, she had “zero” “badge rings” indicating that she was not in the facility. The Acting Manager described that he confirmed with Complainant that she turned the paper timecards into her Former Supervisor, which confirmed that she had been falsifying documents. 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 an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 12, 2022, the Agency filed a motion for a decision without a hearing. Complainant did not file an opposition to the motion or dispute that summary judgment was inappropriate. On June 28, 2022, the AJ granted the Agency’s motion for a decision without a hearing. The AJ determined that Complainant failed to establish that the Agency’s conduct was taken because of her protected classes -race, sex, age, and reprisal. On July 6, 2022, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. Complainant appealed the Agency’s decision to the Commission. Complainant submitted a number of evidentiary documents on appeal. However, she did not file a statement or brief, or provide an explanation on why she seeks to introduce the new documents into the record. The new evidence consists of a Merit Systems Protection Board (MSPB) decision where her Former Supervisor was the named plaintiff in the action, and a statement from the Former Supervisor where he references the MSPB decision. The Agency filed a brief in on appeal, arguing that the new evidence is inadmissible because it was reasonably available during the hearing process. 2022004216 4 According to the Agency, Complainant had ample opportunity to provide the evidence to the AJ because the MSPB decision was issued 10 months prior to its filing for summary judgment. ANALYSIS AND FINDINGS New evidence on appeal The Commission will not consider new evidence on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to the investigation or during the hearing process. EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § VI.A.3 (August 5, 2015). See also Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (July 12, 1999) (“[N]o new evidence will be considered on appeal unless the evidence was not reasonably available during the hearing process”). Here, Complainant, on appeal, submitted a MSPB decision and statement from the Former Supervisor. These documents were not part of the record available to the AJ when considering the Agency's motion for a decision without a hearing. Complainant offered no explanation why the documents were not previously available to the AJ. She has also given no explanation on why the documents are relevant or how they point to material facts in dispute in this matter. For these reasons, the new evidence will not be considered. Summary Judgment Decision The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. 2022004216 5 Here, however, Complainant failed to establish such a dispute. As already noted, on appeal, Complainant submitted no argument challenging the AJ’s summary judgment decision. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. Claims of discriminatory or retaliatory disparate treatment are reviewed under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination. A complainant may do so by presenting facts which, 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 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency management witnesses articulated legitimate, nondiscriminatory reasons for issuing the Notice of Removal for Unacceptable Conduct. The Acting Manager stated that he made the decision to issue the Notice because Complainant submitted timecards for sixth day overtime for days where she performed no work. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare- Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). In an effort to show pretext, Complainant asserts that she did work on the days in question. However, she provided no evidence of that work or that she was at work on the days in question. 2022004216 6 In sum, Complainant produced no evidence to show that the notice of removal was not issued for the reasons proffered by management or were linked to her protected bases. Moreover, the Acting Manager and Lead Manager testified that they were unaware of Complainant’s prior EEO activity and she presented no evidence to the contrary. Therefore, we affirm the Agency’s conclusion that Complainant did not prove discrimination because of her race, sex, age, or prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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). 2022004216 7 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. 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 November 22, 2022 Date