[Redacted], Sharon D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2021001008 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001008 Hearing No. 480-2020-00511X Agency No. 1F-901-0099-19 DECISION On November 17, 2020, 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 October 13, 2020 final decision concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, P-06, at the Agency’s Processing and Distribution Center in Los Angeles, California. Complainant’s supervisors were the Supervisor, Distribution Operations (S1) and the Manager, Distribution Operations (M1). Complainant entered into a Last Chance Settlement Agreement (LCA) with the Agency on August 3, 2017, which constituted a last chance for Complainant to correct her conduct and any attendance related matters. 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. 2021001008 2 Agency management agreed to reduce a Notice of Removal for Failure to Maintain Regular Attendance issued to Complainant on May 9, 2017, to a time-served disciplinary suspension. The LCA provided the following relevant terms: the LCA would be in effect for 12 months from August 3, 2017; during the term of the LCA, Complainant would not incur more than 32 hours of unscheduled leave and 10 unscheduled tardies in 12 months; and any violation of the terms of the LCA would constitute just cause and result in the reissuance and implementation of the Notice of Removal. Complainant was issued a Notice of Removal on January 18, 2018, for violation of the LCA. The Notice of Removal was rescinded as part of a grievance settlement on May 17, 2018, and Complainant was paid a lump-sum for lost work while she was out. Additionally, the grievance settlement extended the term of the LCA until February 3, 2019 (six months) and provided that all terms in the LCA remained unchanged. A Labor Relations Specialist for Agency management and Complainant’s union representative signed the grievance settlement. Complainant alleged management extended the LCA by six months without her approval. On January 30, 2019, Complainant was given an investigative interview by S1 regarding her attendance on 23 dates from August 29, 2018 - January 27, 2019. Complainant said the Family Medical Leave Act (FMLA) covered 13 of the absences and gave various explanations for the other absences, including not being aware she had to work. Complainant was issued a Notice of Removal on February 8, 2019, which charged Complainant with violating the August 3, 2017 LCA because she failed to maintain regular attendance when she incurred more than 32 hours of unscheduled leave over a 12-month period. In response to Complainant’s assertion in the investigative interview that certain absences were covered under FMLA, the notice explained Complainant’s tardiness was not covered under her FMLA certification. Additionally, it stated Complainant failed to submit medical documentation to justify her unscheduled absences. Because she did not comply with the terms of the LCA, the Notice of Removal was reinstituted, and Complainant was removed from her position. On July 8, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when on February 8, 2019, she was issued a Notice of Removal for violation of a Last Chance Agreement after the expiration date. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found Complainant failed to establish that management’s legitimate, nondiscriminatory explanations for its actions were pretext for discriminatory or retaliatory animus. 2021001008 3 S1 issued the Notice of Removal as Complainant’s supervisor, and M1 was the concurring official for the removal. However, S1 said it was Labor Relations who made the removal decision. Both S1 and M1 asserted that Complainant’s attendance infractions all occurred while the LCA was in effect and before the LCA expired on February 3, 2019. Therefore, the removal notice for violating the LCA and Complainant’s failure to maintain regular attendance was valid. Complainant claimed S1 targeted her as a woman and removed her from her position while not removing men for poor attendance. S1 cited two other employees, one male and one female, she had removed for unsatisfactory attendance. Aside from Complainant’s subjective belief, the Agency concluded Complainant failed to establish by a preponderance of the evidence that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo Complainant established a prima facie case of discrimination and reprisal, the Commission finds Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, as discussed above, the grievance settlement specified the LCA was to be extended until February 3, 2019, with all terms in the agreement remaining unchanged. 2021001008 4 The removal notice specified 23 instances of unscheduled leave covering 54.34 hours between August 29, 2018 and January 27, 2019, with 13 of the occurrences due to tardiness. ROI at 96- 97. The record supported the unscheduled absences listed in the Notice of Removal. S1 testified that Complainant’s attendance was unsatisfactory, and the Notice of Removal was issued after corrective action and investigative interviews. Additionally, management confirmed with the Human Resources Shared Service Center that Complainant’s FMLA certification did not include tardiness and that Complainant would need to submit updated documentation for FMLA to cover her absences due to tardiness. Id. at 152. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 9, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on discriminatory or retaliatory animus. Agencies have broad discretion to carry out personnel decisions, absent evidence of unlawful motivation. Laurice S. v. Soc. Sec. Admin., EEOC Appeal No. 0120180646 (June 21, 2019). “In other words, this Commission ‘does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive.’” Laurice S., supra (quoting Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012)(emphasis added). The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. The Commission finds Complainant was not subjected to discrimination or reprisal as alleged. 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 decision, because a preponderance of the record evidence does not establish that discrimination occurred. 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. 2021001008 5 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. 2021001008 6 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 August 11, 2022 Date