[Redacted], Wes L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 20-2000-0478 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wes L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 20-2000-0478 Agency No. 4B-060-0045-19 DECISION On September 18, 2019, 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 September 6, 2019 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Probationary City Carrier Assistant, Q/01, at the Post Office in Norwalk, Connecticut. On March 28, 2019, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (African-American), sex (male), and disability (schizophrenia) when: 1. On December 27, 2018, Complainant was issued a notice of separation effective January 7, 2019; and 2. On January 2, 2019, Complainant was accused of impersonating a postal employee. 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. 2020000478 2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC 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 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. Complainant’s Medical Condition: Complainant identified as his disabling medical condition “psychosis-schizophrenia.” He stated that he was first diagnosed with this condition on December 13, 2018, and that his physician expected his condition to last approximately three years. He averred that on December 13, 2018, the date of his diagnosis, he informed the Norwalk Postmaster of his condition. When asked to describe duties that he could not perform, Complainant replied, “work-schedule.” When asked to list short-term work restrictions he had as a result of his medical condition, he wrote, “short-term memory.” When asked what limitations he had in his personal life as a result of this condition, he identified the following: “personal finances; bills; chronic mental illness. IR 49. When asked if he was aware of whether or not Complainant suffered from any medical conditions or impairments, the Norwalk Postmaster replied that he was not aware of any medical conditions or impairments other than Complainant’s erratic behavior. The Postmaster averred that he became aware of Complainant’s behavior when Complainant was detained by police and medical personnel in Holyoke, Massachusetts in December 2018. He also stated that he received no medical documentation from Complainant. IR 79. Incident (1): Complainant claimed that the Norwalk Postmaster issued him the notice of removal but did not provide an explanation for doing so. However, when asked whether he disagreed with the decision to terminate him, Complainant replied that he did not. IR 50-51, 80-81. The Postmaster’s stated reason for terminating Complainant was that Complainant had shown a behavior pattern that was “not conducive to working for [the Agency].” The notice of separation dated December 27, 2019, cited unsatisfactory performance during Complainant’s 90-day probation period as the reason for the termination. IR 99. Incident (2): Complainant claimed that he did not know who had accused him of impersonating a postal employee. Complainant stated that whoever made the accusation claimed that he approached a delivery vehicle and identified himself as the Norwalk Postmaster, and that there were no eyewitnesses to the incident. IR 53-54. The Norwalk Postmaster affirmed that someone from the Bridgeport Post Office contacted him to report that Complainant had approached a delivery vehicle and identified himself to the driver of that vehicle as the Norwalk Postmaster. IR 84-85. ANALYSIS AND FINDINGS 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). 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 2020000478 3 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”). 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, 802 (1973). His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Norwalk Postmaster articulated legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1) the notice of termination and the SF-50 documenting the termination identified unsatisfactory probationary performance as the reason for Complainant’s separation. Regarding incident (2), the Norwalk Postmaster reported that Complainant falsely identified himself as being the Norwalk Postmaster while at the Bridgeport Post Office. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Postmaster’s explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Postmaster's proffered legitimate reasons for his actions that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why he believed that his race, sex, and medical condition were factors in these incidents, Complainant replied that he was racially profiled, that he was subjected to gender discrimination, and that schizophrenia if left untreated could have long- term and short-term consequences. IR 51, 54-55. Beyond these assertions, however, Complainant has presented neither affidavits, declarations, or unsworn statements nor documents which contradict the explanations put forward by the Norwalk Postmaster or which call into question the Norwalk Postmaster’s veracity as a witness. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The evidentiary record is not sufficient to establish the existence of an unlawful discriminatory motivation on the part of the Norwalk Postmaster with regard to either incident. As a result, the Commission finds that Complainant was not subjected to discrimination on the bases as alleged. 2020000478 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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). 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). 2020000478 5 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 2, 2021 Date