Jackie C.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 21, 2020

2020003058 (E.E.O.C. Sep. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jackie C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003058 Agency No. 1F-901-0190-19 DECISION 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 February 4, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time Mail Processing Clerk at the Los Angeles Processing & Distribution Center located in Los Angeles, California. Complainant alleged that A1, Manager, Customer Services at the Hancock Post Office, and A2, Manager, Customer Service Operations, intentionally discriminated against her in retaliation for engaging in prior EEO activity when: from June 9, 2019, and ongoing, management manipulated her bidding status from “eligible” to “ineligible” to prevent her from obtaining a bid. Complainant’s most recent EEO activity was Complaint No. 4F-900-0240-18 filed in approximately July 2018. A1 and A2 were named as responsible management officials in that complaint and were aware of this fact. 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. 2020003058 2 According to Complainant, she was eligible to be awarded a bid for Job ID# 70704247 at the Hancock station; however, between September 2018 and July 7, 2019, her status for various job postings under this Job ID# changed from eligible to ineligible. She mentioned, for example, job postings 202924, 189797, and 183378. Complainant believed she should have been eligible for these postings because the only requirement for the position was one year of window experience and she had more than twenty years of such experience. Complainant maintained that her prior EEO activity was a factor in her bidding status being manipulated because both A1 and A2 knew she would file grievances and EEO complaints and they did not want her at the Hancock station for that reason. Complainant maintained that other clerks also had their bidding status manipulated when they bid for positions at the Hancock station. Specifically, she stated that the other clerks who bid on Job ID# 70704247, posting 202924 were also deemed ineligible when management manipulated her bid, which then caused “a domino effect” to the other bidders. Complainant stated that C1, however, was treated more favorably than her because her bid under posting 189797 was successful. Complainant also noted that C2 bid on posting 183378 and was awarded the bid. Complainant did not know if C1 or C2 had engaged in prior EEO activity. A1 stated that she was the manager of the Hancock Station when Job ID# 70704247, posting 202924 was put up for bidding. She requested that the bid be posted with the work hours of 1200 to 2100, with rotating days off because of operational needs. She was subsequently informed by a station supervisor, S1, that the bid was incorrectly posted with the hours of 0900 to 1800, with Saturday/Sundays days off. Because she was on vacation, A1 contacted A2 and A3, Supervisor, Customer Service Support for the Los Angeles Post Office, with the corrected bid hours. A1 stated that A2’s only involvement in the matter was to assist her in reaching A3 to ensure that the bid work hours were corrected. A1 stated that she was not sure of the job bid cancellation process, but that it appeared her request that the work hours be corrected caused the cancellation of posting 202924. The cancellation was mandated because an employee’s start time could only be changed by one hour; therefore, had the bid been awarded as indicated it would not have met the operational needs of the station. A1 stated that she had nothing to do with the bidding process outside of determining the hours and days of work for bids in her unit. She stated that the bidding process was handled by another unit and the employees who work with the bids are trained to handle the bids appropriately. A1 noted that these employees do not provide any information to the managers on which employee is the senior bidder and who is eligible or ineligible for bids. A1 stated that managers only validate that the information for a bid is correct prior to the posting of the bid. A1 stated that Job ID# 70704247 was re-posted on August 5, 2019, and was open for bidding on August 7, 2019, under posting 205359. Complainant bid on the re-posted position and she was awarded the bid. A1 indicated that the effective date of the re-posted bid was September 14, 2019. A1 noted that many employees filed grievances over this situation, but that it did not matter to her who was in the position if they did their job competently, efficiently and fully. 2020003058 3 Finally, A1 maintained that she was not aware of Complainant’s bid on the position and she was not aware of the determination of Complainant’s eligibility as she has nothing to do with the bidding process. A2 stated that she did not know why Job ID# 70704247 was cancelled from posting 202924. She stated that she was not involved in Complainant’s eligibility being changed from eligible to ineligible and she was not involved in determining if an applicant was eligible or ineligible to be awarded a bid. Complainant, according to A2, was at some point awarded the Lead Sales and Service Associate bid at the Hancock Station and was currently holding that position. A4, District Complement Coordinator for the Los Angeles District, stated that he was responsible for ensuring that the posting and bidding process followed the National Agreement between the Agency and the Union. He noted that when a Job ID is cancelled from a posting, the applicants remain eligible for all other positions except the cancelled position, all bidders on the cancelled Job ID become ineligible. A4 also testified that A1 and A2 do not have access to the computerized bidding process to the effect that they can change what has been entered into the program and he asserted that A1 and A2 did not change Complainant’s status from eligible to ineligible because no one has access to the computer program to change or manipulate the posting/bidding process. Complainant, he stated, was automatically deemed ineligible when the Job ID was cancelled. As for posting 189797, A4 stated that there were seven bidders for the position and Complainant was the highest-ranking bidder, but she was not awarded the position because she was the senior bidder on another position where she had ranked higher. C1 was the second highest bidder and she was awarded the position, effective February 2, 2019. With respect to posting 183378, A4 stated that there were eight bidders for the position and Complainant was the highest-ranking bidder. A4 stated the bid was awarded to C2, the second highest ranked bidder, effective November 10, 2018, because Complainant withdrew her bid for the position. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020003058 4 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. 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, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, 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.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for her prior EEO activity, we find that the Agency articulated a legitimate, nondiscriminatory reason for why her status was changed from eligible to ineligible for posting 202924, and for why she was not selected for postings 189797 and 183378. We find no persuasive evidence of pretext here. Complainant, other than speculation, offered no evidence that her prior EEO activity played any role in the Agency’s actions regarding the bids she sought. According to A1, posting 202924 was cancelled because the hours were incorrectly stated. According to A4, when a posting was cancelled all eligible bidders are automatically deemed ineligible. Complainant was treated no differently than any other employee. Perhaps, as Complainant asserted, the error should and could have been discovered earlier in the process, but the fact that it was not does not establish discriminatory animus. Finally, there is no indication in the record that Complainant was deemed ineligible for the other postings. She was not selected for posting 189797 because she was the successful bidder for another position, and she withdrew her bid on posting 183378. 2020003058 5 CONCLUSION We AFFIRM the Agency’s final decision finding 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). 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. 2020003058 6 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 September 21, 2020 Date