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

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022003416 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ronny S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003416 Hearing No. 420-2022-0039X Agency No. 4G-350-0092-21 DECISION On June 7, 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 May 4, 2022 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS- 24, at the Agency’s Montgomery Post Office in Montgomery, Alabama. 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. 2022003416 2 On May 28, 2021, Complainant filed an EEO complaint alleging that: 1. The Agency discriminated against him on the bases of sex (male) and age (y.o.b. 1963), when, on or around December 31, 2020, management informed him that his request to use emergency sick leave was denied. On August 5, 2021, Complainant amended him complaint to include: 2. The Agency discriminated against him on the bases of race (Black), national origin (African American), sex (male), and reprisal for prior protected EEO activity (instant complaint) when, on August 3, 2021, he became aware that management had changed 40 hours of his time during Pay Period 2021-16 from sick leave to Leave Without Pay (“LWOP”). The Agency accepted the foregoing claims and conducted an investigation into the matter. As part of the investigation, Complainant clarified that his sex was not a factor in Claim 1, and the bases of race, sex, and national origin were not factors in Claim 2. He identified his prior protected EEO activity as the instant complaint alleging age discrimination. Claim 1 - Denial of Emergency COVID Leave Between April 1 and December 31, 2020, the Families First Coronavirus Recovery Act (“FFCRA”) provided up to 80 hours of Emergency Paid Sick Leave (“EPSL”; hours code 077- 19) to employees who were unable to work because of six possible qualifying COVID-related reasons. FFCRA Qualifying Reason 2 - employee advised by a healthcare provider to quarantine - required an employee requesting EPSL to provide the District Occupational Health Nurse (“OHNA”) the name of the health care provider who recommended the self-quarantine. The OHNA was responsible for ensuring adherence to health and safety protocols by reviewing reports which identified employees who were using COVID leave and cross-referencing that list with COVID records to determine whether proper documentation had been received and protocols followed. Alabama District employees who needed to be absent from scheduled work due to COVID were required to notify the OHNA or their immediate supervisor. Beginning on December 7, 2020, Complainant was on Family-Medical Leave Act (“FMLA”) protected leave for a non-COVID condition. Via text message sent on December 21, 2021, Complainant instructed a member of his staff, the Montgomery Post Office (“PO”) Station Manager, to code his absences for December 21-24 and 28-31 as EPSL. According to Montgomery PO Station Manager, Complainant said he had been exposed to someone with COVID and he would be quarantining. She acknowledged that she did not have PS Form 3971s for those dates. According to Complainant, he did not submit documentation in support of his absences because he was not required to do so at the time of his requests. 2022003416 3 In the course of her duties, the OHNA discovered Complainant’s time had been coded as EPSL. Her subsequent investigation of his COVID status revealed that he had not notified his immediate supervisor of his alleged exposure to COVID, provided proper documentation of his incapacity to work due to COVID, nor been exposed to anyone who was COVID-positive. According to Human Resources Manager (y.o.b. 1964), Complainant was interviewed by OHNA and he could not provide medical documentation to support that he had COVID. Complainant reportedly then said he had been exposed to his nephew who was COVID-positive. When asked to provide the positive test result from his nephew, Complainant submitted a COVID test result for his nephew that was negative.2 Thereafter, on December 29, 2020, Human Resources Manager instructed Montgomery PO Station Manager to remove the EPSL code from Complainant’s timecard and to code the time with the leave of Complainant’s choice, because he had not provided any documentation of his incapacity to work due to COVID and there was no evidence he had been exposed to a COVID- positive individual. Complainant testified that on or around December 31, 2020, he was notified by Montgomery PO Station Manager that Human Resources Manager had instructed her to deny Complainant’s requests for EPSL due to a lack of documentation. He avers he was charged with personal sick leave for his absences. As part of the investigation, Complainant provided a March 10, 2021 doctor’s note stating that Complainant “was asked to quarantine from December 21 through 31/2020 due to significant exposure to COVID Positive family members.” (ROI, p. 187). It is not clear when or if this was provided to Agency management. Complainant believed his age was a factor in this decision because another EAS manager in Montgomery was out on EPSL during the same period and was not required to submit documentation. Complainant identified two employees he believed received EPSL in similar circumstances, a manager in her 30s (“Employee A”) and a manager in his 40s (“Employee B”) who received EPSL when they had to quarantine due to COVID exposure. Human Resources Manager testified that Employee A provided medical documentation from a healthcare provider, reflecting a visit date of December 20, 2020, and she returned to work on January 5, 2021. She stated Employee B sought a medical assessment that was provided by the employee to the OHNA. An email in the file also indicates Employee A notified management on December 18, 2020 of a COVID exposure, and Employee B notified management on December 28, 2020 of a COVID exposure. Montgomery PO Station Manager corroborated that Employee A verbally informed her that Employee A’s boyfriend had tested positive for COVID and she needed to quarantine. 2 The record does not contain testimony from OHNA herself. 2022003416 4 Claim 2 - Leave Without Pay On August 3, 2021, Complainant became aware that Postmaster OIC changed his scheduled sick leave to LWOP. Complainant testified that he had provided PS Form 3971s and medical documentation to Acting Manager Post Office Operations (“Acting MPOO”) on or around July 29, 2021, and met with her in person. He stated his sick leave request was neither signed as approved or disapproved, but his sick leave was entered and his pay was not interrupted. Complainant stated he explained that he had an upcoming appointment and would provide updated medical documentation after his appointment. According to Complainant, he also provided medical documentation and additional PS 3971s to the new Manager Post Office Operations on August 27, 2021. However, he received notification from a manager that he was “missing time”. Complainant believed the action of changing his sick leave to LWOP was retaliation for filing his EEO complaint and, as of the time of his testimony, no payroll adjustment had been completed. Postmaster OIC testified that he was instructed by Acting MPOO to change Complainant’s leave to LWOP because Complainant had failed to provide any documentation. He testified no PS Form 3971s were submitted to him for Complainant’s absences, but Complainant did not request leave from him and he did not instruct Complainant to provide documentation. According to Acting MPOO, every 30 days she asked Complainant if he had submitted medical documentation to substantiate his absence as required. Similarly, she asked if he had submitted the required PS Form 3971s requesting leave. In response, attested Acting MPOO, Complainant confirmed he knew of the requirements and stated he had not provided the required paperwork. Acting MPOO testified she informed Complainant that as a senior-level manager, he is very aware of the requirement to submit documentation and requests for leave. She asked him if he would allow his employees to do this and Complainant responded that he understood. She testified that she did change LWOP for July 17-23 to paid leave after Complainant sent her a text showing that LWOP was still reflected on his timecard. Since it was a Friday evening, explained Acting MPOO, she changed it because she did not want the time to be pulled and the leave not corrected. The Agency Employee and Labor Relations Manual (“ELM”) § 511.41 states that an unscheduled absence is any absence from work that is not requested or approved in advance. Except in an emergency, the use of sick leave must be requested using a PS Form 3971 and approved in advance. (ELM § 513.331). Postmasters who are absent from work for an extended period are required to submit a PS Form 3971 at the end of each accounting period. (ELM § 513.35(b)). For absences in excess of three (3) days, employees are required to submit acceptable documentary proof of their incapacity for work; if acceptable substantiation of incapacitation for work is not provided, the absence(s) may be charged to LWOP. (ELM § 513.362 and 513.365). 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 2022003416 5 Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 6, 2022, motion for a decision without a hearing. On April 26, 202, the AJ issued a decision finding that Complainant failed to prove that he was subjected to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. Complainant filed the instant appeal. On appeal, Complainant contends the Agency addressed his allegation of discrimination but did not address the allegation of retaliation. He also points to a purported discrepancy in the record: that Human Resources Manager testified that OHNA conducted an investigation regarding his sick leave which led to the denial of EPSL, but OHNA states in an email contained in the record that she did not have contact with Complainant until February 10, 2021. Therefore, argues Complainant, Human Resources Manager’s reason for instructing Montgomery PO Station Manager to deny Complainant’s EPSL appears to be a fabrication and such conflicting accounts can only be clarified by a hearing. He also points to Montgomery PO Station Manager’s testimony that no documentation was necessary as another conflicting fact that requires a hearing. Additionally, Complainant believes Postmaster OIC and Acting MPOO testimony, regarding Claim 2, also identifies inconsistencies that would necessitate a hearing. Complainant requests the Commission remand the matter for a hearing. In response, the Agency maintains that its decision, adopting the AJ’s finding of no discrimination, should be upheld because Complainant’s appeal merely restates the arguments he presented opposing the Agency’s motion for summary judgment and repeats his disagreement with the actions taken by management officials. The Agency contends Complainant failed to establish a genuine issue of material fact regarding any essential element of his case to that the legitimate, nondiscriminatory reasons articulated by the Agency were a pretext for discrimination. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2022003416 6 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. Complainant has not done so here. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm'n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Complainant’s allegations give rise to a claim of disparate treatment based on his age and EEO activity. A claim of disparate treatment based on indirect evidence is examined under the three- part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. 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. Tex. Dep’t. of Cmty. 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 acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. 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. 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 find the Agency has articulated a legitimate, non-discriminatory reason for its actions. In Claim 1, the Agency stated Complainant was not given EPSL because he failed to: submit a PS Form 3971 or a request for EPSL, notify his manager he had been exposed to COVID, provide the OHNA the name of the health care provider who advised him to self-quarantine or show he had been exposed to someone who tested positive for COVID. Complainant does not assert that he provided documentation when requesting EPSL. With respect to Claim 2, Acting MPOO instructed Postmaster OIC to change Complainant’s leave from sick leave to LWOP because Complainant had been on extended leave without providing PS Form 3971s or documentation of his incapacity to work. Complainant admits he did not provide this documentation until July 29, 2021, after the leave period in question. 2022003416 7 Complainant has failed to show that the Agency’s articulated legitimate, non-discriminatory reasons for its actions are pretext for discrimination. The record is absolutely devoid of any evidence of discriminatory or retaliatory animus on the part of the Agency beyond Complainant’s speculative beliefs and conjecture. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Complainant asserts that younger employees were given EPSL when he was not, but the evidence shows these employees notified management, and shortly thereafter provided the OHNA with medical documentation regarding their exposure and/or quarantine. Additionally, the management official Complainant asserts is responsible, Human Resources Manager, is only one year younger than Complainant. There is simply nothing to tie Complainant’s age to the denial of EPSL. Additionally, while Complainant argues the timing of the affidavits given by management in this case indicate retaliatory motive, he provides no additional explanation or evidence beyond timing to explain why he believes this was retaliatory. The Commission has long held that bare assertions are insufficient to prove pretext. See, e.g., Erby v. U.S. Postal Serv., EEOC Appeal No. 0120064377 (Feb. 12, 2008). Although Postmaster OIC was aware of Complainant’s EEO complaint by at least July 23, 2021, he stated he acted at the direction of Acting MPOO, who was not aware of Complainant’s EEO activity until after the events in question. Complainant acknowledges he did not provide documentation until July 29, 2021. Even taking these facts in the light most favorable to Complainant, he has not demonstrated a discriminatory or retaliatory motive. Lastly, with respect to Complainant’s assertion on appeal that the Agency failed to address his claims of retaliation, we disagree. The Agency specifically noted in its Motion for Summary Judgment that “[t]he Agency's use in this Motion of the term discrimination and its derivatives includes the term retaliation and its derivatives.” (Motion, p. 2, FN. 2). The AJ relied on the Agency’s Motion (among other things) in his decision. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action adopting the AJ’s decision. 2022003416 8 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). 2022003416 9 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 October 31, 2022 Date