[Redacted], Clayton C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004336 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004336 Hearing No. 471-2018-00121X Agency No. 4J-481-009218 DECISION On July 27, 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 25, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, PS-6, at the Agency’s Post Office in Warren, Michigan. On May 12, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Indian) and in reprisal for prior protected EEO activity when, on January 31, 2018, Complainant was informed that his reassignment request was no longer being processed. 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. 2020004336 2 Complainant identified the Postmaster, EAS-24, (White) (prior EEO activity); the Human Resources Staffing Specialist (HRSS), EAS-19, (White) (no prior EEO activity); and the Area Compliment Coordinator (ACC), EAS-23, (African-American) (no prior EEO activity) as the management officials responsible for the alleged discrimination. Complainant was employed as a Carrier, level 6. He was seeking a promotion to a higher-level position. Complainant averred that he applied for promotion in his current craft in November 2017 and February of 2018. He asserted that both applications were rejected, because he had not been recommended by the review committee. Report of Investigation (ROI), Affidavit A. On January 1, 2018, Complainant learned that there was an open reassignment announcement for the position of Maintenance Mechanic (level 7) in the Royal Oak bid cluster for the Michigan Metroplex. The Maintenance Mechanic position required a qualifying exam, which was the Postal Service Test 955. On the same date he learned of the vacancy, he submitted a request for reassignment to the higher-level Maintenance Mechanic position. HRSS confirmed that Complainant applied on January 1, 2018, by entering his request on-line in the eReassign, which is the mandatory on-line system used to request reassignment. HRSS processed his request for consideration for reassignment. He took the Postal Service Test 955 on January 17, 2018, and received a score of 83.17, which was a passing score. ROI at 47. On January 9, 2018, he received a response from HRSS, advising him to complete the paperwork, which he completed. Complainant went to the Postmaster on January 19, 2018. ACC, the Area Complement Coordinator, learned that HRSS had been entering the names on- line. ACC told HRSS to stop the process, because Complainant did not have a valid Postal Test 955 score prior to submitting his January 1, 2018 reassignment request. ROI, Affidavit D. ACC said that she was not aware of Complainant’s race. ROI at 89. ACC acknowledged that she learned that HRSS was allowing transfer applicants to take the 955 exam in order to qualify for the Maintenance Mechanic PS-7. She averred that “when I learned that the Detroit Staffing Specialist was actually providing an exam to employees requesting transfer into the maintenance craft, I explained to her the contract language and informed that she was to follow the language outlined in the EL-912 Transfer Memo, as well as the language in the [collective bargaining agreement interpretation manual]-Order for Filling Vacant Maintenance Position - Step 7.” ROI at 89. The EL-912 stated that “requests from qualified employees will not be unreasonably denied.” Item D says “must have acceptable work, attendance and safety record and meet minimum qualifications” which ACC reasoned would include the successful completion of the Postal exam 955. ROI at 91. ACC told HRSS to stop the process underway regarding Complainant’s reassignment request. HRSS was told she could only process applicants that were already fully qualified for the Maintenance Mechanic position and further told she could only process applicants that were currently qualified for the Maintenance Mechanic position at the time of the initial application. ROI at 69. 2020004336 3 HRSS averred “None of the applicants were fully qualified and I stopped any further actions.” ROI at 59. She averred she was not aware of Complainant’s race and had no perception of his race. ROI at 58. On January 31, 2018, Complainant inquired about the status of his application. Complainant was told that the processing of his request for a reassignment had been stopped. The stated reason was that he was not qualified at the time he submitted his request and therefore, it was an error for HR to process his request. Complainant named five individuals whom he claimed were allowed reassignment. The record did not show whether those individuals were actually reassigned or seeking reassignment to the Maintenance Mechanic position at the time that Complainant applied, or the race of the comparators. The record indicates that the process was stopped for the applications of four individuals. The Agency stated that “four others were also deemed ineligible and their reassignments were stopped for the same reason.” The Postmaster named one individual who was granted a reassignment request to the Royal Oak Cluster in 2016 and further averred that he was the releasing official. ROI at 74-75. The Postmaster added that two other non-Asian employees had been permitted a reassignment around January 8, 2018, but they were released to the Call Center. Id. There was no record of anyone being granted a reassignment to the Maintenance Mechanic position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 2020004336 4 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…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 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). In order 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. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant has failed to establish such a dispute. He did not show evidence that other similarly situated individuals outside of his protected classes were treated better regarding reassignment to the Maintenance Mechanic position. Further, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to rebut as pretextual. The Agency stated that the process was halted because ACC deemed Complainant ineligible for further consideration, because Complainant had not met the qualifications at the time when he first submitted his application. Four others had been determined to be ineligible for similar reasons. There was no evidence that any other employee had been reassigned to the Maintenance Mechanic position during January 2018. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2020004336 5 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). 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. 2020004336 6 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 22, 2021 Date