Alyce R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120172039 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alyce R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172039 Hearing No. 461-2017-00012X Agency No. 1G701003916 DECISION On May 20, 2017, 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 11, 2017, final order 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tour 2 General Clerk, PS-06 at the Agency’s Main processing and distribution center ("PD&C") facility in New Orleans, Louisiana. Having worked for the Agency since 1978, she was usually the senior clerk on duty. On September 1, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American) when on May 19, 2016, Complainant was instructed by Agency's management to work in a location other than her bid assignment. 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. 0120172039 2 After 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. When Complainant did not object, the AJ assigned to the case granted the Agency’s April 10, 2017, motion for a decision without a hearing and issued a decision without a hearing on May 5, 2017. The AJ found that on May 19, 2016, the Manager in Plant Support (MPS) at the New Orleans P&DC directed Complainant’s supervisor, the Supervisor of Distribution Operations (SDO), to move Complainant to the 170 unit to clear the mail because there was excessive volume of delayed mail that needed to be worked. At the PD&C, delayed volumes of mail require immediate attention of all hands-on deck to abate and correct the mail flow issue. In addition to Complainant, three postal employees, all African Americans, were instructed to work outside of their bid assignments. Complainant stated that she only worked for 30 minutes in the other work location. Based on these facts, the AJ concluded that Complainant failed to establish a prima facie case of race discrimination. The AJ noted that Complainant did not identify any employees outside her protected group who were treated more favorably than Complainant and that Complainant did not show that she was adversely affected by the short time she spent in the other location. Accordingly, the AJ concluded that Complainant was not aggrieved and also did not establish that the Agency’s action as motivated by discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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. We find that the issuance of a decision without a hearing was proper in this case. On appeal, Complainant contends that she was subjected to an adverse action when the MPS ordered that she be moved from her bid position to another work location that required her to case flats of delayed volumes of mail because the duties exceeded her medical restrictions. 0120172039 3 We note that Complainant has not claimed disability discrimination and has not alleged that she was denied a reasonable accommodation. Complainant also maintains that the relocation was based on her race because the Collective Bargaining Agreement (CBA) states that junior employees are to work outside their unit before senior employees, only African American employees were assigned to work outside their bids, and two White employees who were junior to Complainant were not required to work outside their bid assignment. The record shows that the other African American employees assigned to work outside their bids were not similarly situated to Complainant since they were junior employees. The record contains an affidavit from the union steward who confirmed that there were junior employees, including a White employee, who should have been assigned to work in the 170 unit before Complainant was, that she reported this matter to the SDO, and as a result, the SDO permitted Complainant to remain at her bid assignment. The SDO stated that even though she asked Complainant to work in the 170 unit, Complainant never left her bid assignment. At most, Complainant worked on the bid assignment for 30 minutes. Even if the Agency made a mistake in assigning Complainant to that duty (which we will assume for the sake of argument), there is no persuasive evidence that the mistake was motivated by discrimination. Once told that the CBA was violated, the Agency immediately moved Complainant’s work duty according to the union steward. We find that Complainant has failed to show by a preponderance of the evidence that the Agency’s action was motivated by discrimination. CONCLUSION We AFFIRM the Agency’s decision finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). 0120172039 4 All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120172039 5 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. Ha signature Carlton M. Hadden, Director Office of Federal Operations December 19, 2018 Date Copy with citationCopy as parenthetical citation