Celinda L.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2020000202 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celinda L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000202 Hearing No. 510201900162X Agency No. 4G330025518 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 8, 2019 Final Order concerning an 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 was employed by the Agency as a Manager, Customer Service (“MCS”), EAS-24, at the Hollywood Main Post Office, located in Hollywood, Florida. On June 30, 2018, Complainant filed an EEO complaint alleging discrimination and harassment by the Agency on the bases of race (Hispanic), sex (female), age (52), and reprisal for prior protected EEO activity when: 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. 2020000202 2 1. On or about February 25, 2018 and continuing, her leave requests have been denied, 2. On or about May 16, 2018, she received a Notice of a Proposed Letter of Warning in Lieu of a Fourteen-day Suspension ("LOW"), and, 3. On or about May 17, 2018, she was instructed to surrender her Agency-issued mobile device and office keys, then was directed not to contact any employee of the Hollywood Main Post Office. After its investigation into the complaint, 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 assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on August 2, 2019. The record developed during the investigation shows the following evidence: Complainant’s first level supervisor (“S1,” male, Hispanic, 49) was a Manager, Customer Service Operations (“MCSO”), EAS-25. The Hollywood Postmaster (“PM,” male, Caucasian, 54) was her second level supervisor. Both S1 and PM are identified as the responding management officials in this complaint. By Complainant’s account, the underlying reason for her reprisal claim is that S1 and PM were retaliating against her for applying for positions in different districts. Between February and April 2018, Complainant submitted three requests for annual leave with the stated reason of “moving.” On or about February 9, 2018, Complainant submitted her first request (April 30, 2018 through May 4, 2018), which S1 approved. On April 4, 2018 Complainant submitted the second request. S1 denied this request when Complainant informed him that she wrote the incorrect dates (April 7, 2018 through April 11, 2018) on the request form. On April 6, 2018, Complainant submitted a third request (May 7, 2018 through May 11, 2018). S1 testifies that he denied Complainant’s third request, because one of Complainant’s colleagues (“C1” female, African-American, approximately 47 years old), a Level 21 MCS, had already requested, and been approved for leave for May 7, 2018. S1 and PM testify that due to operational needs, they would only schedule one Manager to take annual leave at a time. S1 allowed Complainant to arrive early on May 7, 2018 so that she could leave early, as she had a moving truck scheduled that day. S1 also approved Complainant for annual leave on May 8 and 9, 2018. On April 24, 2018, Complainant was subjected to a pre-disciplinary interview with S1, who made allegations that she describes as a “serious defamation of character.” The resulting LOW, dated May 14, 2018, charged Complainant with “unacceptable performance” including five instances in March 2018, where she failed to address performance issues among her subordinates, causing policy compliance issues that were later resolved. 2020000202 3 The LOW also charged Complainant with “unacceptable conduct,” stating that Complainant instructed one of her subordinates, a Level 17 Supervisor (“C2,” female, African-American, age not specified) to change an instance of sick leave in the Agency’s timekeeping system (“TACS”) from “unscheduled” to “scheduled.” Although C1 corroborates the allegation, Complainant disputes ever telling C1 to change her TACS record. On May 17, 2018, Complainant was on a 90-day detail at another Agency facility, when S1 and PM met with her to request that she return her Agency-issued local mobile device, and her keys to the Hollywood Main Post Office. PM explained to Complainant that they needed the mobile device and keys to give to Complainant’s substitute at the Hollywood Main Post Office while Complainant completed the detail. S1 also wanted to ensure the mobile phone was kept in his district, and preserve potential evidence regarding changes to Complainant’s leave. S1 also instructed Complainant not to speak with her subordinates during the detail. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. On appeal, Complainant appears to argue that summary judgment was improper because the record is not sufficiently developed. See, e.g. Anisa U. v. United States Postal Serv., EEOC Appeal No. 0120141580 (Jul. 20, 2016) (finding the Agency’s decision, arrived at without a hearing, improper because the investigative record, lacking data on comparator employees, was inadequate, as this information was crucial to the complainant’s prima facie case). 2020000202 4 We reviewed the detailed list of issues Complainant argues still need to be investigated, and found them to be either outside the scope of the accepted claims in her complaint, or concerned evidence that was peripheral to the issues, and insufficient to raise a question of material fact warranting a hearing. In other words, had the AJ provided Complainant an opportunity to further the investigation through discovery, the information she sought would not have prevented dismissal by summary judgment. We find the AJ properly determined that the record was sufficiently developed for a Decision Without a Hearing. Disparate Treatment 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. Texas 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). Reprisal Claim To establish a prima facie case of reprisal, Complainant may show that: (1) she engaged in protected activity, (2) the Agency was aware of the protected activity, (3) after Complainant engaged in the protected activity, Complainant was subjected to adverse treatment by the Agency, and (4) a nexus exists between the protected activity and the adverse treatment. See Kristy E. v. Dep’t of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). It is undisputed that Complainant has not met the first requirement of the prima facie analysis for reprisal. The instant complaint is Complainant’s first EEO filing, and there is no evidence that she engaged in other prior activity protected by employment discrimination laws. By Complainant’s own account on appeal, as a postal employee of 31 years, 12 of which in her position as an MCS, she has not felt the need to engage in EEO activity before this complaint. Race, Sex and Age Claims 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. 2020000202 5 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). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Complainant v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006). However, the Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second- guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). For Claim 1, payroll records, leave request slips, and testimony by S1, who was responsible for approving Complainant’s leave requests, contradict Complainant’s allegation that her leave requests have been continuously denied since February 25, 2018. For the two instances where S1 denied Complainant’s leave requests denied during the relevant time frame, the Agency provided legitimate nondiscriminatory explanations. Complainant does not dispute that the Agency’s legitimate nondiscriminatory reason for denying her leave request because it contained incorrect dates. However, Complainant argues that S1’s explanation of “operational needs” for denying the corrected request, was pretextual. According to Complainant, C1’s leave “had nothing to do with” her, as C1 had her own office, with a full staff of supervisors and often another manager would assist her, so her absence would not operationally impact the facility such that Complainant could not also take leave. However, Complainant has not shown that the policy of scheduling only one manager for annual leave at a time to ensure sufficient coverage was unreasonable in terms of business judgement. Complainant’s argument appears to support the facility policy by acknowledging that the scope of her responsibilities, which often entailed covering Level 25 duties, was more extensive than that of C1, a Level 21 manager. Complainant’s allegation is further undermined, as she was approved for leave on May 8 and 9, 2018, and, when she explained that she already scheduled movers for May 7, 2018, she was permitted to report early and leave early to meet the movers. Complainant has not offered any argument or evidence to show a question of fact exists to warrant a hearing on this matter. For Claim 2, the Agency’s legitimate nondiscriminatory reasons for issuing the LOW, “unacceptable performance” and “unacceptable conduct,” are supported by Agency-wide policies in the Postal Service Employee and Labor Relations Manual (“ELM”), and Complainant’s position description. 2020000202 6 The Agency also explained that a Level 24 MCS is “at the highest echelon” of management, so those holding the position have extensive responsibility and are held to higher standards. Among other things, the “unacceptable performance” included instances where Complainant did not follow up or take corrective action after a manager and a supervisor (her subordinates) violated Agency procedures. Complainant’s response that the actions at issue occurred on dates she was not present at the facility, and that she reported the manager and supervisor to OIG, ignores evidence provided by the Agency demonstrating that following up on the actions of her subordinates was part of her supervisory responsibilities. We find this sufficient grounds for issuing a LOW. The Agency also establishes that the “unacceptable conduct” of directing a subordinate to change an attendance record in TACS, which can result in removal, is a legitimate, nondiscriminatory reason to issue a LOW. While the record reveals conflicting testimony by S1 and Complainant, it is undisputed that C2 made the change. Complainant raises a number of questions, such as how C2 achieved access to a higher level on TACS, to cast doubt on the LOW finding of “unacceptable conduct,” but no evidence to create an issue of material fact warranting a hearing. We also do not find the Agency’s decision not to discipline C2 sufficient evidence of pretext, given the Agency’s legitimate nondiscriminatory explanation C2 was protected from retaliation under Agency policy and Whistleblower laws. For Claim 3, the Agency’s legitimate nondiscriminatory reason for Complainant’s Agency-issued mobile device, along with her office keys was so they could provide them to Complainant’s substitute for the duration of Complainant’s detail. PM also testified that he instructed Complainant to turn in her Agency-issued mobile device “for two reasons. 1) [PM] knew she was applying for positions outside the district and, having just transferred into the South Florida District [PM] knew how difficult it was to transfer cell phones between districts. 2) because she was disputing making certain phone calls to her supervisors, [PM] wanted to see her phone call and text records to preserve any evidence that may be contained in them.” S1’s legitimate nondiscriminatory reason for telling Complainant not to speak with her subordinates at the Hollywood Main Office was that he received complaints from her subordinates about Complainant’s demeanor toward them, including her phone calls. Additionally, he reasoned, that Complainant’s subordinates at the Hollywood Main Office would not be reporting to her while she was serving the detail, so there was no reason for Complainant to communicate with them. Complainant argues that PM and S1 acted improperly because they allegedly did not consult with HR or IT before confiscating her Agency-issued mobile device, which she emphasizes was “personally” assigned to her. She also challenges the manner in which S1 and PM retrieved the office keys and phone, and how S1 told her not to speak with her subordinates at Hollywood Main Post Office. Complainant testifies that S1 and PM treated her “worse than a criminal” when they requested her Agency-issued mobile phone and office keys. As they were both male, Complainant interpreted PM and S1’s decision to meet with her in a separate office located in a secluded area of the facility where she was detailed to be an “intimidation tactic.” Likewise, she felt PM was trying to intimidate and retaliate against her when he told her that if she did not hand over her phone, an unfavorable decision would be issued on a pending disciplinary action against her. 2020000202 7 Complainant felt bullied and humiliated, and based on personal observation, believes that individuals outside her protected classes would not have been subjected to the same treatment. While we see how PM and S1’s actions may have felt intimidating or upsetting, Complainant has not shown that the Agency’s proffered legitimate nondiscriminatory reasons for its actions alleged in Claim 3 were pretext for discrimination. In terms of business judgment, taking Complainant’s Agency-issued mobile device and keys to her office on Agency property, while instructing her not to speak with her subordinates while she was not supervising them, are not unreasonable actions. To the extent Complainant argues that her rights were violated when the Agency “confiscated personally assigned items” and “robbed [her] of personal information [contained in her Agency- issued cell phone,” we find the actions fell within the scope of Agency authority, and business judgment, as those items are Agency property and potentially contained evidence for an investigation. Complainant has not provided any other evidence of pretext, or to support her statements that PM and S1 were motivated by discrimination, that would allow us to find a question of fact warranting a hearing. CONCLUSION Based on a thorough review of the record and the parties’ contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 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. 2020000202 8 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). 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. 2020000202 9 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