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

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022002428 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cole E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002428 Hearing No. 450-2019-00268X Agency No. 1G-761-0001-19 DECISION On March 18, 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 March 3, 2022, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator, PS-07 at the Agency’s Jack D. Watson Post Office facility in Fort Worth, Texas. On December 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (migraine headaches) and age (46) 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. 2022002428 2 1. Complainant’s request not to be scheduled to work off-day overtime on October 6, 2018, was denied; 2. On October 5, 2018, Complainant’s request for leave was denied; and 3. On or about January 19, 2019, Complainant’s supervisor instructed him to provide medical documentation for his January 18, 2019 absence and refused to pay him Family Medical Leave Act (FMLA)-protected sick leave for the day. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on February 15, 2022, finding no discrimination. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The claims involve actions of three Transportation Supervisors at the Agency (Supervisor-1A, Supervisor-1B, and Supervisor-1C). All three supervisors had a supervisory relationship with Complainant. Regarding claim 1, Supervisor-1A explained that Complainant and six other employees submitted requests in advance to not be scheduled for overtime on October 6, 2018. Operational needs prevented Supervisor-1A from granting the request of all seven employees. Supervisor- 1A approved the requests of five applicants. Four of these approvals were based on the requesting employee having higher seniority than Complainant. The final approval was based on the requesting employee indicating that he would be attending a wedding. A Collective Bargaining Agreement (CBA) provision allowed for deviations from the seniority system of scheduling employees for overtime based on “equity (e.g., anniversaries, birthdays, illness, deaths).” Complainant admitted that his age and medical condition were not factors in Supervisor-1A’s denial of his request. Regarding claim 2, Complainant called in to request paid FMLA leave on October 5, 2018. Complainant reported that he had an FMLA certification. Complainant contends that such certification prevents a supervisor from requesting medical documentation for a paid FMLA leave request for three days or less under the 2017 APWU/USPS Joint Contract Interpretation Manual. Supervisor-1B denied Complainant’s request for paid FMLA leave but approved Complainant for unpaid FMLA leave for October 5, 2018. Supervisor-1B explained that he requested medical documentation for Complainant’s request for paid FMLA leave because Complainant had a pattern of calling in sick around his scheduled days off and holidays. A Leave Year Absence Analysis for years 2017 and 2018 for Complainant demonstrates such a pattern. Regarding claim 3, Complainant admitted that he was not instructed to provide medical documentation for his absence. Complainant admitted that the initial request for paid FMLA leave was accepted and approved by Supervisor-1B. 2022002428 3 Complainant contends that Supervisor-1C went into the relevant system and applied unpaid status to Complainant’s leave request. Supervisor-1C reported that he made an error in the relevant system when approving Complainant’s sick leave request. Supervisor-1C stated that he erroneously pressed the option denying the paid status related to Complainant’s sick leave request and he was unable to correct the mistake without Complainant physically going to the finance department. Supervisor-1C noted that the error occurred at the end of the pay period. Supervisor-1C reported letting Complainant know about the mistake, apologizing, and informing Complainant that he would be paid the next pay period. The error was corrected in the next pay period and Complainant received his pay for the leave request on January 30, 2019. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 2022002428 4 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); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that the Agency has articulated legitimate, nondiscriminatory reasons for the personnel actions at issue. Regarding claim 1, Supervisor-1A explained that operational needs required two of the seven employees requesting to not be assigned overtime to work. Supervisor-1A noted that four employees had higher seniority than Complainant and a fifth had an equitable reason, valid under the CBA, to not be selected for overtime instead of Complainant. Regarding claim 2, Supervisor- 1B explained that he denied paid FMLA leave, pending medical documentation, while approving unpaid FMLA leave for October 5, 2018, because Complainant had a pattern of calling in sick around his scheduled days off and holidays. Regarding claim 3, Supervisor-1C reported that he made an error when inputting Complainant’s leave into the relevant system and that he was unable to fix it before the next pay period. After a review of the record, we find Complainant failed to show that the Agency’s articulated reasons for the discrete adverse employment actions were a mere pretext for discrimination. For instance, Complainant admits that his age and medical condition were not factors in claim 1. Regarding claim 3, Complainant relies purely on his belief of discriminatory animus, which is insufficient to meet Complainant’s burden. 2022002428 5 The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022002428 6 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 March 8, 2023 Date