[Redacted], Abe K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Nov 10, 2021

Appeal No. 2020004252 (E.E.O.C. Nov. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Abe K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004252 Hearing No. 550-2019-00268X Agency No. 4E-980-0082-18 DECISION On July 20, 2020, 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 June 18, 2020 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer Service Operations, EAS-23, at the Agency’s Seattle District in Seattle, Washington. On September 27, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Asian), national origin (Indian/South Asian), and age (55) when, on June 7, 2018, he was informed he was not selected for promotion to the Postmaster EAS-24 position in Bellevue, Washington. 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. 2020004252 2 In his complaint, Complainant stated, without elaboration, that this complaint “incorporates all prior filings” relevant to his claim of ongoing discrimination regarding promotions. In the Agency’s Letter of Acceptance, however, the Agency only accepted the single June 7, 2018 non- selection claim. Complainant sent a timely objection, disagreeing with the notice of “Claims to be Investigated,” which only referenced one accepted issue. Specifically, Complainant’s attorney objected to the Agency’s definition of the accepted issues because it did not include his harassment and hostile work environment claim. Report of Investigation (ROI), p. 62, p. 129. On November 21, 2018, the Agency sent a letter to Complainant, which stated: Although your formal complaint alleges discrimination for several years in regard to promotions, you only provide information in relation to one incident that occurred on one specific date. To qualify as harassment, the actions complained of must be ongoing and continuous and the information/allegations you provide must demonstrate this. Even a few isolated incidents are not sufficient to demonstrate harassment . . . Your allegation does not qualify as harassing conduct. ROI, p. 127. 2 The pertinent record shows that Complainant is claiming that he was subjected to a hostile work environment, that he was repeatedly bypassed for promotion, that he was more qualified than the selectee for the above-referenced position, and that the named management official (RMO) (African-American), has made racist comments, including stating the Agency should stop hiring Asians and telling Asians, “You should go back to your own country.” Complainant averred that RMO was aware of his race and national origin because we “work together in management.” ROI at 160. The position at issue was the Postmaster position, EAS-24, at Bellevue. As a Level 23, he was the highest graded candidate in the candidate pool. The position at issue had been posted three times and Complainant had applied each time it was posted. ROI at 161-62. Complainant averred that on May 8, 2018, he sent an email to ask why the Bellevue position was reposted. Complainant claimed that RMO told him she requested the reposting of the job to “give the chance to someone else.” ROI at 96. Complainant was interviewed by RMO but was not selected. The selectee was an EAS 22 Manager of Customer Service but had no prior Postmaster experience. Complainant stated that he believed the race of the selectee to be White, his national origin to be American, and that he did not know his age. Complainant was the supervisor of the selectee. 2 In addition, Complainant attempted to amend his complaint to include an additional claim alleging that his wife was harassed. The Agency dismissed the amendment for failure to state a claim. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2020004252 3 RMO asserted that she was the only official involved in the decision not to select Complainant. RMO added that “there is no organizational relationship between Complainant and her. The record shows the RMO’s second level supervisor was the District Manager, who was the same manager that Complainant had. Complainant alleged that RMO was the deciding official for two of the three Postmaster postings. Complainant states she was the responsible official for the October 31, 2017 posting, and another manager, DW, was the official for the January 30, 2018 posting. ROI at 194. Complainant claimed that RMO is “openly discriminatory towards Asians” and “has created a hostile environment for Asians.” Complainant claimed that he reported it to the district manager.” ROI at 164. Further, Complainant said that, on April 14, 2018, RMO instructed the Redmond Postmaster not to hire Indians. The record includes statements from Complainant and others claiming that preferred candidates for promotion were given interview questions in advance of interviews and that Asian employees were being subjected to harsher terms and conditions of employment. ROI at 20. Complainant alleged that nearly everyone that RMO selects is African-American and nearly all of them previously worked with the RMO in Las Vegas. RMO affirmed that the selectee “was in alignment with what the organization needed” and was the best candidate based on the application and the interview. She said the selectee’s eCareer profile was a more professional product with fewer errors. Additionally, RMO claims that she was unaware of the race, national origin or age of Complainant or the selectee; however, the record shows that the selectee and RMO knew each other. RMO claimed to have no management relationship with Complainant, but the record shows they both report to the same manager and one of RMO’s stated reasons for not selecting Complainant was her assessment of his performance. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the entry of summary judgment is premature and inappropriate because discovery was not even started. Complainant’s attorney stated the record is entirely missing information regarding the hostile work environment claims and the reposting of the Postmaster position before a selection was made. The deposition of the deciding official is needed. Complainant states the credibility of the deciding official is in question. She interviewed Complainant, but the deciding official claimed to have no knowledge of the race, national origin or age of Complainant or the selectee. Complainant contends that discovery is needed regarding the hateful comments attributed to the deciding official. 2020004252 4 Complainant noted the record includes testimonial evidence, supporting the claims that the deciding official had expressed animus towards Asian employees. Complainant claims the stated reasons are a pretext for unlawful discrimination and states he is entitled to cross-examine the Agency’s witnesses. Accordingly, Complainant requests that the Commission reverse the final order. 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). 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. After a careful review of the record, we find that the AJ improperly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ's issuance of a summary judgment was inappropriate. We find the Agency improperly distilled the matters raised in Complainant’s complaint into a single allegation regarding one non-selection and failed to accept Complainant’s hostile work environment claim. A fair reading of the complaint revealed that Complainant alleged “ongoing racism” pertaining to promotions, including the repeated reissuance of vacancy announcements for positions for which Complainant applied, but was not selected. Complainant did not waive his hostile work environment claim and filed a timely objection to the Agency’s framing of the issues. In finding no discrimination, the AJ relied solely on the affidavit of the deciding official that she had legitimate reasons for not selecting Complainant. Yet, credibility is at issue in this case where the deciding official averred she was unaware of Complainant’s race, national origin or age, although she interviewed him. Complainant claimed that she told him she wanted to give someone else a chance as the reason for her requesting that the position be reposted, and this was before she interviewed Complainant. She claimed no organizational relationship with Complainant, but one of the stated reasons for not selecting him was premised on her perception of his work. She reasoned “Complainant’s past performance, knowledge and ability did not meet the standards and level of performance required for the position he sought to fill.” Additionally, there are allegations of past racist statements made by RMO. 2020004252 5 The record contains statements that the RMO favored non-Asian candidates and provided the interview questions in advance, which Complainant averred he witnessed. The credibility issue is also raised by the fact that the individual selected was a Level 22, who was selected for a Level 24 position, although he had no prior Postmaster experience. Both the selectee and Complainant had grammatical errors on their application, and yet, this was stated as a determining factor. We further find that the record is inadequate. It contains inadequate evidence regarding the hostile work environment claim and the Agency’s articulated reasons for selecting the lower level candidate. The record contains no evidence regarding the claim that the selecting official made racist statements. There is no evidence that the Agency addressed the perception that it is biased against Asians or favored African-Americans. Also missing from the record is information regarding the Agency’s record of selections and promotional opportunities made over the past two years or the reasons the position at issue was posted three times after Complainant applied. Moreover, the record does not explain why this decision rested with a single individual. According to the Agency’s promotion policy, “Assignment, Reassignment and Promotion Section 743.6, Selection Approval,” all selections are subject to the next level review and approval before the action is affected. ROI, p. 396. The record shows that the Agency reposted the position at issue three times before selecting an employee, who was a Level 22 employee, for a Level 24 position, while bypassing the Level 23 Asian candidate with nine years of experience, who was the selectee’s supervisor. The limited evidence that is in the record lends support to Complainant’s claim that the stated reasons were a pretext for unlawful discrimination against him, that his race was a factor in his being bypassed and that Asian Indians are being unfairly excluded from promotional opportunities. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues which require resolution through a hearing, including an assessment as to the credibility of the various witnesses. Therefore, summary judgment in favor of the Agency should not have been granted. . 2020004252 6 CONCLUSION Therefore, after a careful review of the record, including the Agency's arguments on appeal, Complainant’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and REMANDS the matter for a hearing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC San Francisco District Office within fifteen (15) calendar days of the date of this decision. becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the San Francisco District Office. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020004252 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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). 2020004252 8 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. 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. 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 10, 2021 Date