[Redacted], Matt B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2021000827 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000827 Hearing No. 450-2020-00026X Agency No. 4G-752-0139-19 DECISION On November 5, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 28, 2020 final action 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 During the period at issue, Complainant worked as a Mail Handler at the Agency’s North Texas Processing and Distribution Center (P&DC) in Coppell, Texas. On June 15, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (African American) and age (over 40) when, on January 28, 2019, he received a letter stating his request for reassignment to the Dallas District has been denied due to unacceptable attendance. 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. 2021000827 2 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ subsequently issued a notice of proposed summary judgment decision. Complainant did not file a response. Thereafter, the AJ issued a decision by summary judgment in favor of the Agency on October 20, 2020. The Agency issued its final action adopting the AJ’s finding of no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The Commission reviews disparate treatment claims, such as this one, by applying the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Complainant 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 Agency’s employment actions. See Furnco Constr. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Once the Agency has met the second burden, Complainant bears the ultimate responsibility to persuade us by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). 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 2021000827 3 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); Hernandez v. Dep’t. of Transp., 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). Here, we concur with the AJ’s conclusion that the responsible management officials articulated legitimate, non-discriminatory reasons for the decision at issue and Complainant failed to prove, by a preponderance of the evidence, that these reasons were pretext designed to mask discriminatory motivation. On May 19, 2018 to July 3, 2018, the Agency posted the in-service register for the position of Labor Custodial position, PS-4 at the North Texas P&C. Complainant timely completed the Selection and Data Collection Form for reassignment to the Labor Custodial Level-4 position on October 12, 2018. The Data Collection Form identified Complainant’s craft as Mail Handler, facility as North Texas, and seniority date as May 13, 2006. The Learning Development and Diversity Specialist (“Specialist”) at the Dallas Customer Service District in Coppell, Texas said she was not aware of Complainant’s race or age. The Specialist was responsible for gathering three years of records from each applicant’s supervisor regarding the applicant’s attendance record and safety and/or accident record for the maintenance review committee to review and make a decision. On November 8, 2018, Complainant’s supervisor completed the Supervisor Evaluation form for employees seeking reassignment to the position in question and indicated Complainant had performed his job duties for the past three years professionally and with integrity and he had no live discipline. Complainant’s Postal Service Form 3972, Leave Year 2016 Absence Analysis (Absence Analysis) indicates Complainant incurred two unscheduled absences in 2016. Complainant’s Absence Analysis for 2017 indicates Complainant incurred five unscheduled absences in fiscal year 2017. Complainant’s Absence Analysis for 2018 indicates Complainant incurred two unscheduled absences in fiscal year 2018. The Manager was part of a team of officials who reviewed the packages for the custodial vacancies. At that time, the Manager was not aware of Complainant’s race or age. She evaluated Complainant’s request for reassignment from his position into the custodial position. Specifically, the Manager completed a “Consideration of Reassignment Requests” form, which used a “Decision Analysis Tool” for Complainant and she consulted with another Specialist on or about November 27, 2018. The Manager considered Complainant’s attendance to be unsatisfactory. On January 28, 2019, the Specialist notified Complainant that he had not been selected for the Labor Custodial position, PS-4, at the North Texas P&DC due to unacceptable attendance. 2021000827 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION We AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, finding no discrimination as alleged. 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. 2021000827 5 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. 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. 2021000827 6 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 December 15, 2021 Date