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

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022000775 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Von E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000775 Hearing No. 471-2021-00051X Agency No. 4J-493-0074-20 DECISION On November 24, 2021, 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 October 28, 2021 final order 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., 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 at issue, Complainant was an applicant for the City Carrier Assistant position at the Agency’s Post Office in Portage, Michigan. On November 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian), color (brown), religion (Hindu), and age (64 years) when, on July 19, 2020, the Agency rescinded its job offer for the City Carrier Assistant position. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the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. 2022000775 2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant applied for the City Carrier Assistant position in February 2020. On April 23, 2020, Human Resources sent Complainant an offer letter for the position. The letter stated that the job offer was conditional upon Complainant meeting and completing “all post-offer requirements.” Complainant was informed that failure to “successfully pass all requirements will result in the withdrawal of the conditional offer.” Complainant testified that he had to take academy training before he could start as a City Carrier Assistant. While he waited for academy training, he decided to work as a Rural Carrier Associate because he accepted a conditional offer for the position and completed Rural Carrier Associate training. Complainant admitted that he initially he had challenges as a Rural Carrier Associate. However, he attributed his challenges to poor training. Complainant stated after a few days, he “figured out the system” and “became as good as a performer as anyone else in the team, finished [his] assigned deliveries on time, and helped others as needed.” Complainant testified that when he tried to follow up with Supervisor 1 on the academy training schedule for City Carrier Assistants, Supervisor 1 informed him that he was not fit to be a City Carrier Assistant based on his Rural Carrier Associate performance. Complainant alleged that on July 10, 2020, Supervisor 1 and the Postmaster received an email inviting Complainant to academy training, but they withheld the email from him and never informed him about the training schedule. Complainant declared that Supervisor 1 was “on a mission to fail” Complainant and “used his power to stop” Complainant from becoming a City Carrier Assistant. Complainant believed that his job offer was rescinded because Supervisor 1 decided he could not handle the City Carrier Assistant position. Complainant attributed Supervisor 1’s actions to an incident that happened on his third Sunday as an Assistant Rural Carrier. Complainant explained that on that day, he returned to the Post Office around 3:20 pm to clock out. However, he received a phone call from a coworker who needed help. Complainant said that he informed Supervisor 1 that he could not help the coworker because he had arranged to meet his cousin at his home at 4:00 pm. Complainant stated that he offered to come back at 4:15 pm and help if needed, but Supervisor 1 “got really upset,” lectured him about teamwork, and refused to listen to his offer to return. Complainant stated Supervisor “closed his mind from that point.” During the investigation, the investigator asked Complainant why he believed his race, color, religion, or age were factors in the Agency’s decision to rescind his job offer. But Complainant did not provide a response. Contrary to Complainant’s testimony, Supervisor 1 testified that Complainant received training. Supervisor 1 stated that Complainant took “double [the amount of] time as other carriers” to complete his deliveries and required help from his coworkers. Supervisor 1 stated that when Complainant finished his deliveries, he was unwilling to help others to get them back on track. 2022000775 3 Supervisor 1 recalled the incident that happened on the Sunday where Complainant left work to meet his cousin. According to Supervisor 1, Complainant “left all of the carriers out there,” came into the office, stated that he could not go back out because he had to meet someone at his house, and left at 2:30 pm. Supervisor 1 stated that Complainant’s coworkers delivered packages until 5:00 pm. Supervisor 1 stated, that when Complainant informed him that he was waiting for academy training to become a City Carrier Associate, he spoke “very direct” and informed Complainant that his delivery times were slow, and he had not improved over time even though he was assigned deliveries on the same route. Supervisor 2 revealed that Complainant was assigned partial routes even though it was normal practice to assign full routes to Assistant Rural Carriers. Supervisor 2 stated that he noticed Complainant was unable to complete deliveries in a timely manner. Supervisor 2 stated Complainant showed little improvement on the partial routes over time. Supervisor 2 believed that Complainant could not perform the duties of a City Carrier Assistant successfully because City Carrier Assistants have more stops on their routes and deliver larger volumes of parcels than Assistant Rural Carriers. Postmaster testified that she made the decision to rescind Complainant’s job offer for the City Carrier Assistant position. Postmaster stated that the decision was a joint decision that she made with Complainant’s three supervisors: Supervisor 1, Supervisor 2, and Supervisor 3. Postmaster denied that Complainant’s race, color, age or religion were factors in their decision. She explained that all three supervisors reported Complainant had poor performance. She maintained that part of Complainant’s conditional offer listed suitability as a requirement, and since his job performance was unsatisfactory, he was no longer suitable for the job. At the conclusion of 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 22, 2021, the Agency filed a motion for a decision without a hearing. The AJ granted the motion and issued a decision by summary judgment. In doing so, the AJ took note of Complainant’s deposition and found that Complainant failed to establish a nexus between the Agency’s action and his protected classes. During his deposition, Complainant admitted that he did not believe his religion was a factor in the Agency’s decision to rescind its job offer because Agency officials were not aware of his religion. Regarding race and color, Complainant revealed that none of the Agency officials made comments about his race or color, and he was not specific about the basis of discrimination. Likewise, Complainant stated that he believed that the Agency’s action was related to his age, but he was unaware of other employee’s ages. Given the foregoing, the AJ determined that Complainant failed to establish a prima facie case of discrimination, and issued a decision by summary judgment in favor of the Agency On October 28, 2021, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2022000775 4 The instant appeal followed. Complainant did not submit a statement or brief with his appeal. The Agency submitted brief opposing the appeal. 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 to evidence in the investigative file or other evidence of record that indicates such a dispute. A claim of disparate treatment is examined 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 Department 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. Texas Department of Community 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. 2022000775 5 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 has articulated a legitimate, nondiscriminatory reason for its action. Supervisor 1 and Supervisor 2 conveyed that Complainant was not fit to be a City Carrier Assistant because he failed to meet the delivery standard for Assistant Rural Carriers. Assistant Rural Carriers are expected to complete their deliveries on full routes. Complainant was incapable of completing his deliveries on full routes in a timely manner, so he was assigned partial routes. With assistance, Complainant was able to deliver parcels on partial routes in same the amount of time that it took other Assistant Rural Carriers to complete full routes. Because Complainant was incapable of meeting the delivery standard for Assistant Rural Carriers, his supervisors indicated that he would not meet the delivery standard for City Carrier Assistants because, City Carrier Assistants have more stops on their routes and deliver larger volumes of parcels than Assistant Rural Carriers. This is a sufficient articulation of a reason not to hire Complainant that is unrelated to his race, color, age or religion. The burden now shifts to Complainant to demonstrate that the Agency’s proffered reason was a pretext designed to mask its true discriminatory motivation. A complainant can show pretext in two ways, “either (1) directly by persuading the court that a discriminatory reason more likely motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant has not shown that his work performance was wrongly characterized by the Agency or provided any other evidence, beyond his own conjecture, that his race, color, age or religion influenced the Agency’s decision. After careful consideration of the record, we conclude that Complainant has failed to prove, by a preponderance of the evidence, that the proffered reasons for rescinding his job offer was a pretext designed to mask discrimination. 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. 2022000775 6 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. 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). 2022000775 7 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 February 2, 2023 Date