[Redacted], Sid E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 17, 2020

Appeal No. 2020005124 (E.E.O.C. Dec. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sid E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005124 Hearing Nos. 541-2017-00155X, 541-2019-00046X Agency Nos. 1E-801-007-17, 1E-801-0038-18 DECISION On September 11, 2020, 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 August 11, 2020, final order concerning his equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Tractor Trailer Operator, PS-8, at the Agency’s Processing and Distribution Center facility in Denver, Colorado. On March 3, 2017, Complainant filed an EEO complaint under Agency No. 1E-801-007-17 alleging that the Agency discriminated against him on the bases of race (Caucasian), color (white), disability (unspecified spinal disease), age (66 at the time of the alleged incident), and 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. 2020005124 2 1. on November 21, 2016, Complainant was issued a Letter of Warning (LOW). On April 22, 2018, Complainant filed a second EEO complaint under Agency No. 1E-801-0038- 18 alleging that the Agency discriminated against him on the bases of race, color, age, and reprisal for prior protected EEO activity when: 2. on March 8, 2018 and ongoing, Complainant’s work-load has been increased. At the conclusion of the investigations for both complaints, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the complaints were consolidated. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 15, 2019 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on August 5, 2020. Specifically, the AJ found that Complainant could not establish a prima facie case of reprisal for either claim because his prior EEO activity occurred more than ten years prior to the events at issue and the most recent activity for which he was claiming reprisal involved filing a report of hazard of unsafe practice, which the AJ found did not constitute protected EEO activity. The AJ further found that Complainant could not establish a prima facie case of discrimination based on race, color, disability or age for claim 1 because he could not show he was treated differently. The AJ found that of the five comparators identified by Complainant, four were in the same age group, three of the five had engaged in prior EEO activity, and none of them had failed to meet their time schedule six times in a ten-day period as Complainant had been alleged to do. The AJ further found that, with respect to age discrimination, Complainant’s only evidence was that he “perceived” that the Agency felt he did not work fast enough. With regard to disability, the AJ found that Complainant provided no evidence that Management officials were aware of his medical condition. The AJ next found that, assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show such reasons were pretextual. With regard to the LOW, the AJ found that Complainant provided no evidence that he notified his supervisors beforehand that he could not timely complete his scheduled tours, nor did he show that otherwise similarly situated comparators outside of his protected bases were treated differently. With regard to the increase in Complainant’s work-load, the AJ found that Complainant failed to establish that his work-load was, in fact, increased, nor did Complainant identify a valid comparator outside of his protected bases who was treated differently. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2020005124 3 ANALYSIS AND FINDINGS 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test 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 by presenting facts that, 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. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden 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 252-53; McDonnell Douglas, 411 U.S. at 804. 2020005124 4 This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established his prima facie case of discrimination. We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to the LOW, the letter itself, signed by the Transportation Supervisor (TS: Asian, Asian [sic], 42 years) stated that Complainant was being charged with “Unacceptable conduct” and that: You are getting this letter of warning because you have failed to run the trips as scheduled on following [sic] days: • November 1, 2016 • November 2, 2016 • November 3, 2016 • November 8, 2016 • November 9, 2016 • November 10, 2016 Your actions are a violation of the . . . Employee and Labor Relations Manual (ELM): With regard to Complainant’s work-load being increased, Complainant identified the Vehicle Dispatch Clerk (VDC: race, color, age not provided) as being the person responsible for increasing his workload and said that various management officials “were present and on duty when the incidents occurred.” The Manager, Transportation & Networks (MTN: Hispanic, color not specified, 54 years) and Complainant’s Supervisor (S1: White, white, 66 years) both averred that Complainant’s work-load did not increase. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to the LOW, Complainant averred that “management’s allegations were fabricated with false information” without offering any more detail on the matter. In his Formal complaint, Complainant maintained that TS: Intentionally, and egregiously singled me out and targeted me, by manipulating all of the information he gathered and utilized during the due process investigation to 2020005124 5 fabricate a case against me, due to the fact that I consistently exposed dangerous safety deficiencies within my work assignments that affected my employment work conditions for which he is responsible. We note that Complainant’s argument that the action was taken in retaliation for Complainant exposing safety deficiencies does not support his claim that the actions were taken based on his race, color, age, or disability. Nor has Complainant alleged that the safety deficiencies involved protected EEO activity. Complainant has provided no support for his assertion that the charges were manipulated and that TS “fabricated a case against me” and as such this contention is insufficient to raise a material issue of fact. We have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on his pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Complainant further alleges that other coworkers outside of his protected bases were treated differently and has provided unsworn, and in one case, unsigned, statements from coworkers alleging that other coworkers were seen leaving work early or not performing their work duties. Such evidence does not establish that Complainant was treated differently since the witness statements do not allege that these coworkers failed to “run the trips as scheduled” in six out of ten days. Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reason for issuing the LOW was a pretext, or that the Agency’s action was motivated by discriminatory animus against his protected bases. With regard to Complainant’s work-load being increased, we note that the record shows that VDC passed away before he could be interviewed for the investigation. Another supervisor (S2: Latino, color not specified, 57 years) and MTN both averred that VDC assigned work to Complainant but both denied being aware that VDC had increased Complainant’s work-load. Complainant identified other comparators who he maintains performed less work than he did and asserts that although VDC was not a supervisory or managerial employee, the Agency is vicariously liable for his actions, we note that management officials all denied any knowledge of Complainant’s work- load being increased. We find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that his own work-load was increased, or that VDC or any management officials harbored discriminatory animus toward his protected bases. Nor has Complainant shown the presence of a material issue of fact. 2020005124 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore 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. 2020005124 7 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 December 17, 2020 Date