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

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022000199 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Floyd L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000199 Hearing No. 450-2020-00211X Agency No. 4G-752-0027-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 14, 2021, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a T-6 Mail/City Carrier, PS-6, at the Agency’s Preston Station in Dallas, Texas. On December 23, 2019, Complainant filed his complaint alleging discrimination based on disability and in reprisal for prior EEO activity when on November 18, 20, and 21, 2019, his request for Wounded Warrior Leave (WWL) was changed to Leave Without Pay (LWOP). 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. 2022000199 2 The Agency accepted the complaint as alleged for investigation. Therein, the Agency indicated that during his EEO counseling Complainant raised additional issues, in part, regarding his route change, a reasonable accommodation, and parcel runs. As Complainant did not include these issues in his formal complaint, the Agency indicated that these matters were abandoned by him and he would not be able resurrect these issues later during processing of the complaint. Therein, the Agency notified Complainant, including his then legal representative, to provide a written response if he disagreed with the accepted issue as defined above. Complainant did not respond. At the conclusion of the investigation of the complaint, 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). 29 C.F.R. § 1614.108(f). Complainant requested a hearing. On September 9, 2020, the AJ issued a Notice of Assignment and Proposed Summary Judgment. The parties submitted responses. Based on the responses, the AJ deferred granting summary judgment and scheduled an initial conference to discuss hearing processes. During the initial conference, the parties waived discovery. The parties were also provided a period where they could further supplement the record and file comprehensive disposition motions if desired. On October 27, 2020, Complainant, via his new legal representative, filed Complainant’s Motion for Leave and Staying of Deadlines. Therein, Complainant requested leave to participate in discovery and a postponement of the deadlines for summary judgment and all subsequent responses. The Agency opposed Complainant’s motion. The Agency filed a motion for summary judgment. Complainant filed a response to the motion. The AJ issued a decision without holding a hearing, finding no discrimination. Therein, the AJ denied Complainant’s request to participate in discovery since he waived discovery during the initial conference. The AJ also denied Complainant’s request to amend the complaint to include a variety of issues, including a reasonable accommodation issue, because he did not seek such in a timely manner, it would significantly alter the claim at issue, and he abandoned those claims, as the Agency indicated above. Complainant indicated that he had a 30% military service-connected disability (meniscal tears in knee and multilevel lumber spondylosis), and he was eligible to take WWL. Complainant claimed that on November 18, 2019, his Manager (M1), Customer Service, EAS-20, changed his WWL to LWOP for November 18, 20, and 21, 2019. M1 indicated that she was not aware of Complainant’s medical conditions and restrictions at the time of the alleged incident. M1 denied changing Complainant’s WWL to LWOP as alleged. 2022000199 3 M1 indicated that on November 18, 2019, Complainant put his WWL request, via “called in” on- line, for November 18, 20, and 21, 2019. November 19, 2019 (Tuesday) was Complainant’s nonscheduled day. M1 stated that Complainant’s closing supervisor (S1)2 was responsible for submitting Complainant’s time to the Agency’s Time and Attendance System. The Agency’s Time and Attendance Information for pay period 24, week two (November 16 through 22, 2019) reveals that on November 18, 2019, S1, evidenced by S1’s Employee ID number cited therein, changed Complainant’s WWL request to LWOP (i.e., “Ring Deleted From ERMS”3) for November 18, 20, and 21, 2019. M1 noted that S1 did so because Complainant did not provide sufficient documentation for his leave request. M1 stated that Complainant did not return to work until November 22, 2019. Complainant submitted a Work Release/School Note, discharged date of November 16, 2019, indicating his returning to work with no restrictions on November 19, 2019. Complainant submitted another doctor’s note, an Employment/School Document, dated November 18, 2019, indicating Complainant be excused from work on November 18 - 21, 2019, along with a PS Form 3971 for sick leave for November 18, 2019 (8 hours), indicating “VA Hospital.” Complainant stated that on November 18, 2019, he gave PS Form 5980s (Treatment Verification for WWL) for November 18, 20, and 21, 2019, to his morning Supervisor (S2), Supervisor Customer Service, EAS-17. S2 indicated that he placed these forms in Complainant’s file. M1 stated that S1 brought Complainant’s PS Form 5980s to M1 on following Monday (November 25, 2019) and told her that they were left on the Supervisor’s desk and S1 found them on Saturday morning (November 23, 2019). Complainant’s then supervisor’s (S3) indicated that on December 8, 2019, when she returned to the Preston Station after being away on detail (from February 23, 2019, to December 6, 2019), she learned about Complainant’s WWL issue. S3 offered Complainant to correct the leave, but he told her not to do so because he was “going to file on it.” Complainant then filed a grievance. Complainant’s time was not corrected pending a grievance. At Step A, upon the union’s request, S3 changed Complainant’s leave to WWL from LWOP for November 18, 20, and 21, 2019, and made a pay adjustment for 24 hours covering those days accordingly on December 17, 2019. Complainant acknowledges this. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. On appeal, Complainant, reiterating his arguments made in his response to the Agency’s motion for summary judgement, contends that the AJ improperly issued a decision without a hearing and denied his request to include his reasonable accommodation issue. 2 S1 retired from the Agency in December 2019. The investigative report for the complaint did not include S1’s affidavit. 3 The Agency utilized a call-in number via “ERMS” (Enterprise Resource Management System) software for its employees to request unscheduled leave. 2022000199 4 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Further, despite Complainant’s contentions, we find that the AJ properly denied Complainant’s discovery request and request to include a reasonable accommodation issue. 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 Complainant 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. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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. 2022000199 5 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. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, assuming arguendo that Complainant had established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. The record indicates that on November 18, 2019, Complainant initially entered, via on-line system, WWL for November 19, 20, and 21, 2019. After Complainant’s request, S1, who was responsible for Complainant’s time (Complainant does not dispute this), changed WWL to LWOP on November 18, 2019, because he believed that Complainant did not submit adequate documentation to support the request. M1 did not make that change as Complainant alleged. Although Complainant maintained that he provided PS Form 5980s for November 18, 20, and 21, 2019, to S2 on November 18, 2019, the record is devoid of any evidence S1 was provided the same before he made the change. Even if we assume Complainant properly provided his PS Form 5980s to S2 in a timely manner, we find no discriminatory motive when they were misplaced causing S1 to change his WWL to LWOP. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. 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. 2022000199 6 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). 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. 2022000199 7 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 9, 2023 Date