Lovella S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 29, 20180120170018 (E.E.O.C. Nov. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lovella S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120170018 Hearing No. 440-2015-00148X Agency No. 1J-609-0023-10 DECISION On September 19, 2016, 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 August 17, 2016 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Mail Flow Controller at the Chicago Network Distribution Center (“NDC”). This case has a lengthy background of events, including various Commission decisions, which preceded a review of the matter presently before us. A brief recitation of this background provides some context to the instant formal complaint. 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. 0120170018 2 Matters Prior to Disposition of the Subject Claim On May 10, 2010, Complainant submitted her Application for Immediate Retirement. On June 21, 2010, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (Caucasian) and color (white) when, on April 7, 2010, Complainant was told she could no longer work midnight shifts. On June 30, 2010, the Agency issued a final decision. The Agency stated that there was no evidence that the Agency effectuated the alleged action at the time Complainant filed her formal complaint. The Agency stated that Complainant was out on sick leave with plans to retire. Accordingly, the Agency determined that Complainant did not suffer any loss or adverse employment action because of the alleged Agency action. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a) (1) for failure to state a claim. Complainant appealed the decision. On July 30, 2010, Complainant retired from the Agency. Complainant noted she considered it a constructive discharge in her appeal. On October 22, 2010, the Commission issued its decision. The Commission determined that Complainant stated a cognizable claim relating to a schedule change, and consequential forced retirement. The Commission reversed the Agency’s final decision dismissing the formal complaint, and remanded the matter to the Agency for further processing. Complainant v. USPS, EEOC Appeal No. 0120102995 (Oct. 22, 2010). On November 4, 2010, the Agency accepted the remanded claim and defined it as follows: Complainant alleged discrimination based on race (Caucasian) and color (white) when on April 7, 2010, Complainant was told that she could no longer work on Tour 1, and would be reassigned to Tour 2, and because of the schedule change, Complainant was forced to retire. On November 18, 2011, the Agency sent Complainant 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 timely requested a hearing. On December 1, 2011, Complainant filed a Motion for Summary Judgment. On July 19, 2011, the Agency filed its own Motion for Summary Judgment. On August 19, 2011, Complainant responded to the Agency’s motion. On June 25, 2012, the AJ issued a decision granting the Agency’s July 19, 2011 Motion for Summary Judgment. The AJ determined that Complainant did not raise a genuine issue as to whether she was sent back to her original bid Tour 2 because of her race/color. The AJ determined that the Agency had provided legitimate, nondiscriminatory reasons for its actions to which Complainant failed to demonstrate was pretext for discrimination. 0120170018 3 On July 12, 2012, the Agency issued a final decision implementing the AJ’s June 25, 2012 decision. On August 7, 2012, Complainant appealed the Agency’s July 12, 2012 decision to the Commission. On appeal, Complainant submitted work hour reports that demonstrated that Mail Flow Controller work was being performed on Tour 1. Complainant argued that this action demonstrated that work was available, despite what management had stated. On October 9, 2014, the Commission issued its decision. Based on a review of the record, the Commission determined that the Agency had conducted an inadequate investigation. The Commission noted that evidence submitted on appeal by Complainant concerned the central issue, and was not previously included in the record. The Commission stated that had the investigation been thorough and critical, the evidence submitted by Complainant would have been included in the record. Additionally, the Commission noted that the Agency's July 19, 2011 Motion for Summary Judgment, and Complainant’s response, was missing from the record. The Commission determined that the record was clearly deficient, reversed the Agency’s final order, and remanded the matter for a hearing. Complainant v. United States Postal Service, EEOC Appeal 0120123191 (Oct. 9, 2014). The Instant Matter On July 14, 2015, an initial conference was held by the EEOC AJ. During this conference, the Agency was ordered to submit additional evidence in support of its position that there was not sufficient work taking place on Tour 1 at the Chicago NDC in or around May through at least July 2010 to justify a full-time Mail Flow Controller on Tour 1. Pursuant to that order, on August 27, 2015, the Agency submitted additional evidence to the AJ. In a January 28, 2016 Scheduling Order, the AJ noted that the case was pending due to the Commission’s prior remand order, and determination that the investigation was not complete. The Scheduling Order ordered the parties to submit pre-hearing submissions, including an agreed statement of the claims and basis for discrimination. The Order did not allow for amending claims or purviews. On March 10, 2016, Complainant submitted a request to the AJ to grant her motion to amend the bases of discrimination to include the purview of sex discrimination and a claim under the Americans with Disabilities Act (“ADA”). The Agency objected to this motion. On March 11, 2016, the Agency submitted a Memorandum in Support of its Motion for Summary Judgment. On March 25, 2016, Complainant submitted a Memorandum in Opposition to the Agency’s March 11, 2016 motion. On April 19, 2016, the AJ issued Pre-Hearing Rulings. The AJ stated that the accepted issue, and the matter which is the subject of the instant appeal, is as follows: was Complainant discriminated against based on race (Caucasian) and color (white) when on April 7, 2010, she was told that she could no longer work on Tour 1 (mid-nights) and would be moved to Tour 2 and work the hours of 09:00- 0120170018 4 17:30. As a result of this pending schedule change, she was forced to retire because she was the caretaker for her disabled husband as no one was able to care for him during the Tour 2 hours. The AJ stated that no other claims would be accepted, as the case was only pending as a remand from the prior Agency final decision. The AJ stated that any other allegations would be addressed solely as background evidence. The AJ sustained the Agency's objections that the request to amend the additional purviews as untimely and unduly prejudicial. On June 20, 2016, Complainant, through her representative, withdrew her request for a hearing. That same day, the AJ issued an Order of Dismissal, and instructed the Agency to issue a final Agency decision. The record developed during the original investigation, as later supplemented under order of the AJ, reflects the following pertinent evidence regarding Complainant’s claims. Complainant's bid assignment was on Tour 2. Sometime in 2009, Complainant volunteered to be reassigned from Tour 2 to Tour 1. Complainant volunteered so that she could care for her husband during the daytime hours. At the time, Complainant was the only Mail Flow Controller assigned to Tour 1. While on Tour 1, Complainant worked from 12:30 a.m. to approximately 9:00 a.m. In April 2010, the mechanized operations were shut down on Tour 1 at the Chicago NDC. The mechanized operations had required a Mail Flow Controller. The remaining operations on Tour 1 did not require a full-time Mail Flow Controller. The Manager of Distribution Operations (African-American, black) (hereinafter referred to as “the MDO”) informed Complainant that there was a shortage of Mail Flow Controllers on Tour 2, and consequently Complainant was reassigned to Tour 2. Around the relevant time, a Reduction in Force (“RIF”) was taking place at the Agency’s Air Mail Center (“AMC”) O'Hare facility. The RIF resulted in several Mail Flow Controllers being reassigned to the Chicago NDC. This decision was made above the local Agency’s level of authority. The MDO asserted that she informed Complainant that she would consider her for a Tour 1 opportunity if one arose. The MDO asserted, however, that she was not sure when an opportunity might arise given the constant change. The Agency maintained that at the time of her tour change, and subsequent retirement, there were no available, or foreseeable Mail Flow Controller positions for Tour 1. Subsequently, Complainant alleged that one Mail Flow Controller (hereinafter referred to as “C1”) from the O'Hare facility was assigned to Tour 1 as a Mail Flow Controller. Complainant argued pretext because C1 was working on Tour 1 after Complainant had retired. Complainant argued that it demonstrated that work was available, and could have been assigned to her. 0120170018 5 C1 was reassigned from the AMC O’Hare facility to the Chicago NDC as part of the RIF plan. When C1 was reassigned, he was placed on Tour 3, and remained on Tour 3 until September 10, 2010. C1 was eventually moved to Tour 1, but it was not until after September 2010. Once he was on Tour 1, he was working in the Surface Transportation Center, and not as a Mail Flow Controller. Complainant, in her previous appeal to the Commission, argued that C1’s Tour 1 assignment demonstrated that work was clearly available. The Senior Manager of Distribution Operations (African-American, black) (hereinafter referred to as “the Senior MDO”) argued that contrary to Complainant’s belief, there were no set Mail Flow Controller work occurring solely on Tour 1 after her retirement. The Senior MDO stated that at the time of Complainant’s retirement there was only “spill over” work being performed by Tour 3 employees. The Senior MDO explained that Tour 1 operated from 12:00 a.m. to 8:30 a.m., Tour 2 operated from 9:00 a.m. to 5:30 p.m., and Tour 3 operated from 6:00 p.m. until 2:30 a.m. Tour 3 overlapped with Tour 1, and operated simultaneously from midnight until 2:30 a.m. The Senior MDO stated that when the mechanized operations on Tour 1 were shut down in 2010 there was no need for a full-time Mail Flow Controller, like Complainant, to be on Tour 1. The Senior MDO explained that any mail processed on Tour 1 were merely spill over work from Tour 3. What spilled over was too small to justify a full-time Mail Flow Controller for Tour 1. For example, a Tour 3 Work Flow Controller could work between a few minutes to up to a few hours of overtime to assist with mail. Complainant cited two comparisons in her defense. These individuals were two African- American employees (hereinafter referred to as “C2” and “C3”) who had a bid on Tour 2, like Complainant. During the relevant period, C2 and C3, were serving details on other tours. Complainant contended that the Agency should have recalled C2 and C3 from their details and placed them back on Tour 2, prior to moving her. The Senior MDO stated that C2 was told to report back to his Tour 2 Mail Flow Controller position on May 8, 2010, the same date Complainant was told to report back to Tour 2. As for C3, by April or May of 2010, she was permanently reassigned to a job in another facility, and was no longer an employee of the Chicago NDC. Complainant stated that she offered to perform other types of work on Tour 1, but was denied. For example, Complainant claimed that she should have been permitted to supervise Tour 1, because the Agency was seeking a supervisor for Tour 1 during the relevant time. Complainant also argued that as a senior employee, she should have been given preference. Complainant was a EAS-14 level Mail Flow Controller, which is a management level, and not a craft level status. As such, the Agency stated that Complainant was not subjected to the same provisions of the National Labor Relations Act, or a collective bargaining agreement, where seniority is a factor in reassigning employees. Seniority level was not a factor in determining where Complainant was placed. The Agency stated that Complainant was not a supervisor at the time of the reassignment. Management maintained that there was no need to reassign her as a supervisor when her services as a Mail Flow Controller were needed on Tour 2. Additionally, at the time, 0120170018 6 management stated that there were already other supervisors who could properly serve in managerial role on Tour 1. Ultimately, Complainant argued that the Agency’s actions led to her constructive discharge. The Agency argued that Complainant was not coerced or intimidated into filing her application for retirement. The Agency noted the sympathetic situation that Complainant was in, but noted there was nothing so intolerable about the shift change that would have caused a reasonable person to retire. Based on this evidence, following Complainant’s withdrawal of her hearing request, on August 17, 2016, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. On September 19, 2016, Complainant filed an appeal of the Agency’s decision. Complainant argued that she was discriminated based on race and color when she was constructively discharged by being forced to move to another tour of duty. Additionally, Complainant argued that she was discriminated against when she was the not given a supervisory position which would have allowed her to continue working on her desired tour. Complainant argued that the discrimination was particularly evident when supervisory positions were provided to individuals who were junior to her, and outside of her protected class. ANALYSIS AND FINDINGS As a preliminary matter, we find that the previously lacking record has been properly supplemented under the order of the AJ. Disparate Treatment 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, he 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. 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 on the basis of 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 0120170018 7 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). Even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record is undisputed that in April 2010, the Agency mechanized operations were shut down on Tour 1 at the Chicago NDC. This shut down of operations had a direct impact upon Complainant, as she was the Mail Flow Controller for Tour 1. Complainant was reassigned to Tour 2 because of the shutdown. Based on her family circumstances, Complainant requested to remain, in some capacity, on Tour 1. Management informed Complainant that there were many changes occurring, and there was no ability to allow Complainant to remain on Tour 1 as a Mail Flow Controller. Complainant argued in her prior appeal that there was clearly Mail Flow Controller work being conducted during Tour 1 hours. Complainant v. USPS, EEOC Appeal 0120123191 (Oct. 9, 2014). Complainant argued that the mere fact that anyone was working on such activities demonstrated that the Agency discriminatorily forced her to retirement when it could have allowed her to remain on Tour 1. The Agency responded with documentation that any Mail Flow Controller work being conducted on Tour 1 during the relevant time period was mere “spill over” work from Tour 3. The Agency demonstrated that Tour 3 and Tour 1 overlapped by several hours, and that Tour 3 Mail Flow Controllers would, when necessary, work overtime to complete the work. This situation meant the appearance at times that there was Mail Flow Controller work on Tour 1, when it was being performed by Tour 3 employees. The Agency noted that any spill over work could not justify a full-time Tour 1 Mail Flow Controller. The Agency addressed Complainant’s concerns with C1, and noted that at no point during the relevant period was C1 employed as a Mail Flow Controller in Tour 1. Significantly, once C1 was transferred to Tour 1, he was placed with the Surface Transportation Center. Complainant compared herself to other individuals outside of her protected classes, arguing that those individuals were not forced to go back to Tour 2, while she was forced to do so. For example, Complainant stated that C2 and C3 were detailed out of Tour 2 at the time, and that the Agency should have recalled both individuals prior to reassigning her. The Agency provided documentation that C2 was recalled back to the Agency to work in Tour 2 the same time as Complainant. As for C3, the Agency demonstrated that C3 was permanently reassigned to a job in another facility, and was no longer an employee of the Chicago NDC during the relevant time. Complainant argued that she offered to take on a supervisory position to remain on Tour 1. Complainant argued that the Agency’s denial to allow her to serve in a supervisory role was 0120170018 8 clearly discriminatory. While Complainant served in supervisory details in the past, there is nothing in the record reflecting any requirements by the Agency to provide her a supervisory role on Tour 1 simply because she requested it. There were other employees who were supervisors before and after Complainant’s reassignment that were suitable and ready to carry out the supervisory tasks. Complainant also argued that her seniority should have allowed her to remain on Tour 1. However, there were no mail flow controllers allowed to remain on Tour 1, regardless of seniority. The determination to shut down the mechanized operations had a direct impact upon the assignments of many involved. Complainant also argued that her seniority status should have afforded her other protections within the Agency. As discussed above, Complainant’s seniority status had no impact upon the decision to reassign her. Regarding Complainant’s claim of constructive discharge, the Commission has previously found that to prove constructive discharge, a complainant must show that: (1) a reasonable person in his position would have found the working conditions intolerable; (2) the conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Taylor v. Air Force and Army Exchange Service, EEOC Request No. 05900630 (July 20, 1990). We acknowledge the sympathetic situation Complainant found herself in. However, we find that a reasonable person in Complainant's position would not have found the reassignment to be so objectively intolerable. There is simply no evidence that the Agency’s actions were conducted in such a manner as to force her retirement. In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory animus. Complainant has not provided any evidence that suggests that the Agency's reasons were pretext for discrimination or that discriminatory animus was involved. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL 0120170018 9 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. 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. 0120170018 10 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, Director Office of Federal Operations November 29, 2018 Date Copy with citationCopy as parenthetical citation