Edmund L.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 5, 2020

2020003287 (E.E.O.C. Nov. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edmund L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003287 Agency No. 4C-150-0064-19 DECISION On April 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 1, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 On January 12, 2019, Complainant was hired as a Postal Support Employee (PSE) City Carrier Assistant (CCA) at the Agency’s Swissvale Branch in Pittsburgh, Pennsylvania from January 12, 2019 through April 17, 2019. The Agency then reassigned Complainant to the Greentree Branch in Pittsburgh, Pennsylvania on May 11, 2019, subject to a 90-day probationary period. On October 9, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), color (black), and age (over 40) when: 1. on April 18, 2019, he was separated during his probationary period; and 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. 2020003287 2 2. he was not paid correctly and he was denied a pay advance. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its April 1, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that the responsible Agency official articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. Regarding claim 1, Complainant asserted that on April 18, 2019, he was separated during his probationary period. 2020003287 3 The Supervisor, Customer Services (Caucasian, white, under 40) stated that during the relevant period, he was the Acting Manager (Manager) at the Swissvale Branch. The Manager stated that Complainant was separated during his probationary period because “he was not meeting the requirements of the position. Although he was improving. So, I negotiated an extension on his probationary period with his union. [Complainant] refused to sign the paper for the extension and he refused to work that day.” Another Supervisor, Customer Services (Supervisor 2) (African-American, black, over 40) stated that Complainant was having difficulty “developing a system to ensure he would deliver the correct mail to the correct address. Complainant was having difficulty developing a technique to properly deliver mail in an efficient manner. Feedback was given regularly, particularly when complaints were received by his customers in an attempt to make the Complainant aware of his errors and to ensure he would be more focused.” Supervisor 2 further stated “… Complainant had become increasingly difficult to work with. He would often place blame on the mail being sorted incorrectly, instead of taking responsibility for his deliver mistakes. After the first two performance reviews, the Complainant refused to participate in the Probationary Performance Reviews.” The record contains a copy of the Notice of Separation dated April 17, 2019, in which the Acting Manager placed Complainant on notice that he would be separated from the Postal Service effective April 17, 2019 for “Unsatisfactory Performance.” Regarding claim 2, Complainant alleged he was not paid correctly and denied a pay advance. The Manager of the Greentree Branch (African-American, black, over 40) asserted that Complainant had been paid properly for Pay Period 11 which included the dates of May 16, 17, 20, 21, and 22, 2019.2 She noted that Complainant did not request a pay advance on June 1, 2019, but was told to provide a pay stub outlining what shortages needed corrected. Furthermore, the Manager stated that the adjustment was made on July 1, 2019, and Complainant was paid for the hours he worked. With regard to his claim, beyond his bare assertions, Complainant failed to produce any evidence that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discriminatory animus on any of the bases alleged. Finally, to the extent that Complainant also offered this incident in support of a discriminatory harassment claim, he again has simply provided no evidence to support his claim that his treatment was the result of his race, color and age. 2 Although claim 1 addresses a probationary period termination in April 2019, the matter addressed in claim 2, regarding not being properly paid in May 2019, relates to an extension of the probationary period. 2020003287 4 A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 3 On appeal, Complainant does not challenge the November 6, 2009 partial dismissal issued by the agency regarding two other claims. Therefore, we have not addressed these issues in our decision. 2020003287 5 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 5, 2020 Date