[Redacted], Christal G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Dec 10, 2020

Appeal No. 2020005082 (E.E.O.C. Dec. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christal G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020005082 Agency No. 1K-221-0007-20 DECISION On May 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 29, 2020 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Northern Virginia Processing and Distribution Center (P&DC) in Merrifield, Virginia. On December 14, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of race (Caucasian), disability (carpal tunnel syndrome), and in reprisal for prior EEO activity (Agency Nos. 1K-221-0016-17 and 1K-221- 0055-17)) when, on October 15, 2019 and continuing, she was denied overtime. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.2 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. 2 The record reflects that during the investigation, Complainant did not submit an affidavit. 2 2020005082 In accordance with Complainant’s request, the Agency issued a final decision on July 29, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a timely brief on appeal from the Agency’s merits determination. ANALYSIS AND FINDINGS 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 a complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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 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). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. The Supervisor Customer Services (Asian) explained that on the night of October 15, 2019, when automation was done processing outgoing mail, there was no need for a runner the rest of the night, which was the only overtime task available for Complainant. The supervisor also noted that Complainant could not assist with casing mail like other manual clerks. He stated that he checked with the Manager, Distribution Operations regarding Complainant wanting to work overtime, and the Manager informed him that automation was done and they did not need a runner. Further, the supervisor explained that overtime was called when there was a need based on mail volume. He further stated that “after October 15, 2010, I always ask Complainant to stay to pick mail but most of time Complainant declined to stay.” 3 2020005082 The Manager, Distribution Operations (African-American) confirmed that overtime was called only when the volume of mail on a particular day exceeded the processing window for a section. She asserted that Complainant was on the Overtime Desired List, and that overtime was “called in rotation, by sorority, section.” Here, Complainant failed to meet her ultimate burden of proving, by a preponderance of the evidence, that the explanations proffered by management witnesses were a pretext designed to mask discrimination. As an initial matter, we note that Complainant did not provide an affidavit during the investigation into her complaint. As such, Complainant has produced no evidence that other similarly situated employees were treated more favorably or that there was available overtime work that she could do and her turn in the rotation was skipped. The investigation did establish that Agency time and attendance records show that for the period of October 15, 2019 - February 14, 2020, Complainant worked 37.88 hours overtime. In sum, Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, disability or prior EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 4 2020005082 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, 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. 5 2020005082 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 December 10, 2020 Date