Willie L.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2020003639 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willie L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003639 Agency No. 1J-494-0018-18 DECISION On June 1, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 30, 2020 final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a Part-Time Flexible Tractor Trailer Operator position at the Agency’s Grand Rapids, Michigan facility. On May 19, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him on the bases of race (African-American) and color (Black) when, on January 25, 2018, he was informed that he would not be hired. After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however, subsequently withdrew the hearing request. The Agency issued the instant final decision on April 30, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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. 2020003639 2 The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts which, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See 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. See 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 based on 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The evidence developed during the investigation of the formal complaint establishes that responsible Agency management articulated legitimate, non-discriminatory reasons for its actions, as more fully discussed below. During the relevant period, Complainant was an applicant for a Part-Time Flexible Tractor Trailer Operator (TTO) position at the Agency’s Grand Rapids, Michigan facility. He met the qualifications of the subject position and passed the Motor Vehicle Operator/Tractor Trailer Operator examination. On December 8, 2017, the Agency extended a condition offer of employment to Complainant for the TTO position and he was placed into the position before orientation. During this orientation, however, each TTO must successfully complete a three-hour Defensive Driving TTO Safety course. On January 22, 2018, Complainant began orientation. Complainant took the course on January 24, 2018 and complained of having computer-related difficulties. Specifically, Complainant claimed that the computer either froze up at times, or would return him to the beginning of the testing program. 2020003639 3 Complainant asked the Trainer Technician (Trainer) for assistance. The Trainer suggested Complainant to try working through the computer issues. Moreover, the Trainer noted that Complainant had a notebook with him, which he had placed on the keyboard and this action locked up the keyboard. The Trainer noted when the notebook was removed, there were no issues. The Trainer observed that Complainant was advancing pages before they were completed. She stated that Complainant told her that he had been driving for years and knew what to do and suggested that the course material was incorrect. The Trainer tried to get Complainant to slow down, read all the information and listen to the recordings. Based on the issues Complainant encountered, the Trainer went to her supervisor, Learning & Diversity Manager and advocated that Complainant be given additional time to take the test. The Learning & Diversity Manager approved the request. On January 25, 2018, Complainant was given a second day to successfully complete the course. At that time, the Trainer contacted the Transportation Manager, also Complainant’s supervisor, that Complainant was having trouble passing the course after completing all modules several times and was unable to score the required 100%. They agreed to allow Complainant to finish the day. Complainant again stated that he had computer related issues but managed to obtain a 96% score. The Trainer advised Complainant that he would not be selected for the TTO position because he failed to successfully complete the TTO Defensive Driving Truck Safety course. According to Complainant, the Trainer then escorted him to the elevator and encouraged him to apply for a position on the East Coast. The Trainer (Caucasian, white) explained that Complainant was unable “to [satisfactorily] pass the course requirement even though he was given 16 hours to pass a 4 hour course.” She told Complainant that he would not be selected for the TTO position because he failed to successfully complete the course. She then asked him “if would like me to activate the elevator to take him to the first floor. He said ‘yes.’ [Complainant] does not have access to [the] third floor, nor to the elevator…during our wait, I encouraged him to apply for a position with our office in another job capacity that he might be interested in. Why would he say I told him to apply for any job on the East Coast? That makes no logical sense to say something like that.” Moreover, Complainant asserted that the Trainer helped a Caucasian applicant throughout the entire test which allowed that applicant to pass. However, the Trainer stated that Complainant “accused me of assisting [applicant]. [Applicant] received no more assistance than [Complainant]. The only time I stood behind [applicant] was to ensure that he was able to use the computer, had logged on, and was ready to start his test.” The Manager of Transportation (Caucasian, male) was the concurring official. He that between January 25, 2018 and January 31, 2018, he had several phone discussions and emails with Complainant. He stated that he informed Complainant that the requirement of successful completion of the Safety Training was not met. He further stated that he had “offered several times to the complainant that although he did not qualify on this attempt he was welcome and encouraged to re-apply future postings” 2020003639 4 Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race and color.2 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2 We note that despite being granted an extension to file a brief in support of this appeal, we have no record of Complainant or his attorney submitting such a brief. 2020003639 5 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. 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 November 16, 2020 Date