[Redacted], Chau O.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionJul 21, 2021Appeal No. 2020000905 (E.E.O.C. Jul. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chau O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020000905 Hearing No. 461-2019-00103X Agency No. 4G-700-0006-19 DECISION On October 22, 2019, 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 September 27, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to discriminatory harassment/hostile work environment based on race, sex, religion, color, and reprisal for prior and the instant EEO activity as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Commerce Park Station in Baton Rouge, Louisiana. On December 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the 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. 2020000905 2 bases of race (African-American), sex (female), religion (Baptist), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when the Agency did not pay Complainant correctly or credit her with the proper leave since January 1, 2017. In addition, Complainant amended her complaint to include that she was issued a Debt Collection Letter while the instant EEO complaint was pending. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On August 21, 2019, the Agency submitted a motion for a decision without a hearing. On August 29, 2019, Complainant submitted her Opposition to the Agency’s motion, arguing that genuine issues of material facts existed that required a hearing. The AJ did not find Complainant’s arguments persuasive. On September 9, 2019, the AJ issued a notice of intent, informing the parties that summary judgment in favor of the Agency was appropriate. Pursuant to 29 C.F.R. § 614.109(g)(1), the AJ assigned to the case issued a decision without a hearing on September 24, 2019. A review of the record provided the following facts. Complainant alleged that on September 14, 2018, September 28, 2018, October 12, 2018, October 26, 2018, November 2, 2018, November 16, 2018, November 30, 2018, December 24, 2018, December 28, 2018, January 11, 2019, January 25, 2019, February 8, 2018, February 22, 2019, and ongoing, Complainant was not credited for annual leave or paid hours worked due to a management error. Complainant stated that she discovered her pay stubs were incorrect on October 12, 2018, when she spoke with her union Representative and her station manager. Complainant asserted that she expressed her concerns about the errors in her pay; but that she learned that she owed back pay to the Agency. Complainant stated that during the meeting, her manager explained that Complainant’s scheduled days off were incorrect, which caused Complainant to receive an overpayment. Complainant stated that she requested a demand letter from her supervisor for the overpayment. She added that she also contacted the accounting department to verify the amount that was owed. Complainant noted that her pay stubs did not show any deductions owed. Complainant expressed disagreement with management's explanation because, she asserted, she did not owe the Agency any money. Complainant stated that the Agency had not overpaid her and at the time of the instant complaint, the accounting department had not provided any documentation confirming the overpayment. Complainant added that she was not issued a demand letter requesting her to reimburse the Agency. Based on her calculations, Complainant asserted her belief that the Postal Service owed her 324 hours annual leave, 118 hours sick leave, and 362 regular work hours to correct the mistake. 2020000905 3 The record indicates that the Agency’s full-time employees received 104 hours of sick leave per 26-period leave year during the relevant period of the instant complaint. The Agency regulations state that employees with 15 or more years of creditable service receive 208 hours of annual leave per 26-period leave year, credited at the end of each biweekly pay period in which the annual leave is earned. Complainant’s TACS records for 2017 show that Complainant started 2017 with 0 hours of annual leave and 20 hours of sick leave. In January 2017, Complainant’s TACS records were credited with 208 hours of available annual leave (in error), indicating that Complainant had spent less than 15 years in service. Complainant’s Supervisor, Customer Service, (SC) stated that TACS was responsible for the alleged error. SC stated that Complainant's scheduled day off was incorrect in TACS and the applicable worksheets that were submitted with Complainant's bid award. SC added that instead of giving Complainant the rotating day off, Complainant was assigned Thursdays as her off day each week, which created the error. SC stated that the error was corrected in PP23/2018 beginning on October 28, 2018. SC asserted that it is not true that Complainant was owed 324 hours of annual leave, 118 hours of sick leave, and 342 hours of scheduled work hours to correct Complainant’s pay. SC provided alternative hours to correct the payroll error, explaining that 14 days/112 hours of annual leave, 32 hours of sick leave, and 5 days/40 hours of Leave Without Pay (LWOP) are the correct hours. SC stated that Complainant would also need an adjustment for payment of a full day overtime and penalty overtime that was erroneously paid due to the same error. We note that the record included Agency documents in support of SC’s calculations. SC indicated that she delayed processing any adjustment related to the errors with Complainant’s TACS records and pay due to negotiations between management and the union. After the negotiations failed to result in an agreement acceptable to Complainant, SC commenced processing adjustments to Complainant’s leave and pay errors. The adjustments impacted Complainant’s compensation. To fix the leave and pay errors, a Letter of Demand in the amount of $712.77 was issued to Complainant on June 20, 2019. Based on these facts, first, the AJ stated, Complainant’s claim of leave and/or pay irregularities for 2017, were not supported by the ROI or Complainant’s Opposition to the Agency’s motion. Second, the AJ held that Complainant’s 2017 pay/leave claims lacked merit because Complainant’s TACS records for the dates in 2017, cited by Complainant, showed that Complainant worked overtime and penalty overtime on many dates. The AJ added that there was no probative evidence that station management adjusted Complainant’s work hours to avoid paying her overtime in 2017 as alleged. Third, the AJ noted, regarding Complainant’s claims for 2018, that the undisputed material facts showed that a TACS error changed Complainant’s schedule on her new bid job in January 2018. This error resulted in a significant pay error. As a result, Complainant received full-day overtime and often penalty overtime totaling 265.49 hours when Complainant worked her regularly scheduled day on Thursdays. 2020000905 4 The AJ stated that the undisputed material facts also showed that the TACS error regarding the non-scheduled day was corrected in pay period 23 of 2018. Further, following unsuccessful negotiations with Complainant and the Union, the Agency issued the Letter of Demand. The AJ observed that Complainant’s TACS records for these years showed multiple incidents of paid overtime and no evidence that station management recorded leave in lieu of overtime worked. The AJ added that the TACS records also showed that Complainant’s time was recorded with leave without pay (LWOP) as her leave balance was at or near zero. Hence, the AJ stated, Complainant’s additional claims of pay discrepancies for 2018 and 2019 were without merit. The AJ held that absent probative evidence of prohibited discrimination, a reasonable fact finder could not render a judgment of discrimination in favor of Complainant. The AJ concluded that there was no genuine issue of material fact on this EEO complaint that required a hearing for resolution. The Agency subsequently issued a final action adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Opposition to the Agency’s final action, Complainant reiterates her allegations, asserting that genuine issues of material fact exist requiring a hearing. Complainant alleges that her work hours were treated differently than similarly situated employees outside her protected classes. Complainant identified 59 comparators whom she alleges had received more favorable treatment. Complainant requests that the Commission issue a decision to conduct a hearing, or a decision in favor of Complainant with a finding of discrimination awarding compensatory damages. In its Opposition Brief to Complainant’s appeal, the Agency states its position that Complainant was not subjected to reprisal as alleged. The Agency notes that Complainant presented new evidence on appeal regarding Complainant’s identified comparators. The Agency asserts that Complainant did not demonstrate that the new evidence was not previously available. The Agency requests that the AJ’s Decision Without a Hearing in favor of the Agency be upheld. STANDARD OF REVIEW 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 . . .â€); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. 2020000905 5 In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 lawâ€). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact†is one that a reasonable judge could find in favor for 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 “material†fact has the potential to affect the outcome of a case. ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant reiterates her allegations that she was subjected to reprisal, asserting that genuine issues of material fact exist requiring a hearing in her complaint. After a careful review of the record, however, we find that the AJ properly notified the parties of her intent to grant the Agency’s motion for a decision without a hearing. Complainant was offered the opportunity to respond to the Agency’s motion, and to identify any material facts in dispute. Complainant failed to present any persuasive evidence to support her allegations; and she did not identify any issues of material in dispute. Rather, Complainant reiterates her allegations. Therefore, summary judgment was appropriate in the instant complaint. 2020000905 6 Disparate Treatment The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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. She must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show 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, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Assuming Complainant had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the alleged management actions. Management’s statements indicate, and the record reflects, that a TACS error changed Complainant’s schedule on her new bid job in January 2018, resulting in a significant pay error. Complainant argued that her leave and schedule were treated differently from comparators she first identified on appeal. However, Complainant presented no evidence to demonstrate that the 59 alleged comparators, even if timely presented during the investigation, were similarly situated and had experienced the same unexplained errors and pay errors as Complainant. Complainant asserted her belief that her prior protected EEO activity was the reason without providing evidence or support for her belief. Complainant’s case that was pending and in the EEO process at the time is no such evidence. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. Therefore, Complainant’s claims fail. As she does not prevail, Complainant’s requested relief is not granted. 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 implementation of the AJ’s decision finding no discrimination. 2020000905 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). 2020000905 8 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. 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 July 21, 2021 Date Copy with citationCopy as parenthetical citation