[Redacted], Davida L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2021001280 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Davida L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001280 Agency No. 1K-302-0027-20 DECISION On December 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 5, 2020 final decision concerning an equal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisor, Distribution Operations, at the Agency’s Peachtree Processing and Distribution Center in Atlanta, Georgia. On April 14, 2020, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on race (African-American), color (black), religion (Baptist), age (age 60), and/or in reprisal for engaging in protected EEO activity when: 1. from January 4, 2020 and ongoing, she was forced to work overtime; 2. on January 5, 2020 and ongoing, she was assigned to multiple operations and she was accountable for administrative duties that she was not given time to perform; 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 2021001280 3. on January 7, 2020, she was forced to sign a 1723 (Assignment Order) form changing her schedule and report time: and 4. on January 5, 2020, she was threatened with being moved to an evening shift. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its November 5, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. 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 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). Here, Complainant alleged she was discriminated against by the Manager, Distribution Operations (MDO1) (African-American, black, Baptist, age 55), who was her direct supervisor, and the Senior Manager, Distribution Operations (“MDO2”) (African-American, black, non-denominational, age 51). 3 2021001280 As an initial matter, we find that Complainant has failed to establish a prima facie inference of unlawful retaliation. There is no evidence that Complainant engaged in any prior activity protected by the anti-discrimination statutes other than the filing of the instant complaint, which occurred after the events comprising her complaint. Rather, Complainant stated that she believed she was being retaliated against because she had informed management that she no longer wanted to serve periodically as an acting manager but was put on the schedule anyway. Without more, we do not find this was evidence of her engagement in protected activity. We will, however, assume Complainant established a prima facie case of discrimination on the other bases alleged, but further conclude that management witnesses rebutted any initial inference by articulating legitimate, non-discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that from January 4, 2020 and ongoing, she was forced to work overtime. Complainant alleged that no other supervisor on Tour 2 was forced to work overtime on a daily basis like she was. While she did not identify the dates she worked overtime, she said she was instructed to come in for early overtime (7:00 a.m.) to meet with the 7:00 a.m. employees, work Express Mail and perform administrative duties prior to the start of her tour. A review of Complainant’s attendance records confirms that between the end of December 2019 and June 2020, she often worked beyond her normal scheduled hours each week. However, the evidence of record also establishes that nearly all the other supervisors and acting supervisors worked additional hours outside their normal schedules similar to Complainant. Many worked as many or more hours than Complainant. MDO 1 stated, “I personally did not assign or instruct the Complainant to report work early to perform those duties she stated.” However, he explained that the supervisor schedule was prepared by another manager for all tours at Peachtree P&DC. MDO2 also stated that she was “unaware of Complainant being forced to work overtime; however, supervisors work extra time frequently, due to the needs of the organization.” The manager who did all the scheduling for the supervisors (“MDO3”) stated that she did schedule Complainant for overtime on some of her off-days. She explained that she rotated the supervisors and acting supervisors for off-day overtime if it was needed for the operation. Regarding claim 2, Complainant alleged that on January 5, 2020 and ongoing, she was assigned to multiple operations and held accountable for administrative duties that she was not given time to do. MDO1 stated that Complainant was assigned to perform the administrative duties of her position for the APPS1 only. He stated, however, on or about December 6, 2019, the one of the other supervisors on the tour was reassigned and an acting supervisor was assigned to APPS2. MDO1 stated that Complainant was assigned to assist the acting supervisors, including this one, with the administrative duties for Time and Attendance Control System (TACS) and Enterprise Resource Management System (eRMS) because the acting supervisors did not have access to these systems. 4 2021001280 MDO1 further noted that Complainant was given time to perform administrative duties but there were times, due to mail volume or conditions, he would allow an acting supervisor to cover Complainant’s operation so that Complainant could perform administrative duties. MDO1 acknowledged that Complainant expressed concerns about not having sufficient time to perform administrative duties “but most times we tried to accommodate by using an acting supervisor to cover the operation. Sometimes, that was not possible because of call-ins or other supervisors on scheduled leave.” MDO1 also affirmed that at least four other supervisors were assigned to multiple operations and faced the same need to balance assignments like Complainant. Regarding claim 3, Complainant alleged that on January 7, 2020, she was forced to sign a 1723 form (Assignment Order) changing her schedule and report time. Complainant believed the change to force her to work on weekends resulted in religious discrimination because she had to work on Sundays. There was, however, no indication that Complainant specifically requested a religious accommodation due to the scheduling change or that any of the managers were even aware of Complainant’s religious beliefs. MDO1 stated that due to the shortage of supervisors on the weekend on Tour 2, Complainant’s off days were changed “because of the needs of the facility.” He said another supervisor had moved from Tour 2 (days) to Tour 1 (nights) resulting in insufficient supervisory coverage on the weekends. He also asserted the changes to Complainant’s schedule were done based on seniority. Complainant was the junior supervisor on the tour, so she was selected to cover the weekends. Regarding claim 4, Complainant asserted that on January 5, 2020, she was threatened to be moved to an evening shift. MDO1 explained that Complainant’s original assignment was Tour 3 (evening shift) when she was promoted to supervisor. He stated that “because of the need to put supervisors back in to their original assignment, the Acting Plant Manager and myself met with Complainant because of the need to change the scheduled days off. Acting Plant Manager asked the Complainant if she didn’t want to change her off days then she could return to her original assignment which is Tour 3 (evening shift). No one threatened the Complainant; she merely made a choice.” In sum, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the proffered reasons for the disputed actions were a pretext designed to mask discriminatory motivations. While there is little doubt that Complainant may have reasonably viewed these actions as adverse to her, there is simply no evidence that her race, color, age or religion played any role in the Agency’s actions. CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 5 2021001280 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). 6 2021001280 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 February 9, 2021 Date Copy with citationCopy as parenthetical citation