[Redacted], Breanna S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2021001312 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanna S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001312 Hearing No. 450-2020-00143X Agency No. 1G-761-0042-19 DECISION On December 12, 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 November 30, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic - MPE, PS-09, at the Agency’s Fort Worth Processing and Distribution Center in Fort Worth, Texas. On September 13, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), color (brown), and reprisal for prior protected EEO activity when, on or about June 11, 2019, she was required to take Delivery Bar Code Sorter (DBCS) training to be qualified for the Maintenance Mechanic - MPE position. 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. 2021001312 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: Regarding her alleged basis of reprisal, Complainant attested that she had reported being subject to disparate treatment to management and the Union several times. She also indicated that, in July 2019, she filed a grievance. She attested that the named responsible management officials in the instant complaint were aware of her current EEO complaint activity and attested that she filed a grievance on June 16, 2019. Complainant attested that, on or about June 11, 2019, a Maintenance Engineering Specialist (MES), required her to take DBCS training to be qualified for the Maintenance Mechanic - MPE position. She attested that she disagreed with management’s requirement that she attend the training, as she felt that she should have been required to attend the maintenance course and not the system course. She alleged that management arbitrarily changed the qualifications standard in 2017. She also alleged management violated Agency policy in requiring her to attend the DBCS training. She attested that she believed they wanted her to fail and that they did not want women or people of color in coveted MPE and ET positions. MES attested that he does not have a direct working relationship with Complainant and he does not supervise any employees. He described his position as assisting management with support in providing employees with training courses. He attested that it was not his decision to require Complainant to attend the DBCS training. He attested that he contacted Complainant and informed her that the training was scheduled for April 23, 2019, and she initially agreed. He attested that he was notified on April 23, 2019 that Complainant failed to attend the course. Manager, Maintenance Operations Support (Manager) attested that it was her decision as the RMSS Coordinator, to require Complainant to attend the DBCS training course. She explained that it was her responsibility to post and award maintenance positions and verify that all promotions met requirements in a timely manner. She further explained that the DBCS training course was a requirement for Complainant’s promotion, per the Collective Bargaining Agreement, and this requirement is posted as part of the Notice of Intent when a job is posted. Manager attested that Complainant was scheduled to attend the DBCS training course from April 23 to May 10, 2019 to qualify her for the level 09 MPE position by June 9, 2019, but Complainant called in sick on April 22, 2019. Manager attested that Complainant stated that she had a medical emergency, but management believed she was avoiding the course. Manager attested that management met with Complainant and the Maintenance Craft Director and they came up with a resolution that was accepted by both parties. She attested that they agreed that Complainant would remain in her level 09 status until she qualified by attending and passing a DBCS Systems course, which would be scheduled. Manager attested that they were able to acquire a course for Complainant, held on July 16 to August 2, 2019, which Complainant attended and passed. Complainant was promoted to level 09. 2021001312 3 A Supervisor, Maintenance Operations (Supervisor) provided testimony generally affirming that of MES and Manager. A Notice of Intent to Fill a Vacant Duty Assignment, posting number 2018020, for Maintenance Mechanic-MPE level 09, indicates that qualification for promotion includes successful completion of prerequisites including completion of a systems course for DBCS. A Union Grievance Resolvement, dated June 14, 2019, indicates that Complainant and management agreed that Complainant would have an extension to her promotional detail until management obtains a qualifying course and Complainant attends and passes that course. It also provides that if Complainant failed to attend or pass the course, she would be declared an unassigned regular in her original position and would be bypassed on the promotional eligibility roster. A Successful Bid and/or Promotion Candidates report for the Notice of Intent for posting number 2018020 indicates that Complainant was promoted, effective June 9, 2018. 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 (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 November 18, 2020. 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. The instant appeal followed. On appeal, Complainant makes general allegations of preference being extended to male employees and of policy changes to require a system course just prior to her being hired. She also alleges that the policy was changed for males and management wanted to get rid of women and made it tougher for them to retain their positions. She also makes general allegations that management wanted to get rid of her because of her ethnicity and gender. In response, the Agency argues that Complainant has failed to establish a prima facie case of discrimination or retaliation. The Agency’s assertions include that Complainant was not an aggrieved employee because she did not suffer the loss of a term, condition, or privilege of her employment, as the DBCS training was required for promotion and her completion of the training was part of the grievance settlement. The Agency also asserts that the named responsible management official was unaware of Complainant’s EEO activity when the parties agreed, in the grievance settlement, that Complainant would take the course at issue. 2021001312 4 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Complainant has alleged that the Agency treated her disparately when she was required to take a DBCS training course to be promoted to a Maintenance Mechanic-MPE level 09 position. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). 2021001312 5 Even if we assume that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that the DBCS training was required for promotion to the Maintenance Mechanic-MPE level 09 position, and, additionally, Complainant had agreed to the training requirement as part of a grievance settlement. We note that the record shows that the Notice of Intent to Fill a Vacant Duty Assignment for Complainant’s position clearly indicates this requirement and that Complainant agreed to fulfill this requirement in the grievance settlement. We also note that the record establishes that Complainant completed the training and was promoted. Although Complainant has alleged the Agency violated policy or changed the policy with respect to requiring her to take the DBCS training course because of her race, sex, color, and/or prior EEO activity, the preponderance of the evidence does not support these allegations. Therefore, we find that Complainant has not shown the Agency’s proffered reasons to be pretext for discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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 2021001312 6 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). 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. 2021001312 7 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation