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

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2020003841 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hyo L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020003841 Hearing Nos. 570-2019-00259 and 570-2019-00036X Agency Nos. 1K-221-0022-18 and 1K-221-0036-18 DECISION 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 May 20, 2020 final order concerning an 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 During the period at issue, Complainant worked as a Lead Mail Processing Clerk, PS 7, at the Agency’s Dulles Processing and Distribution Center in Dulles, Virginia. On February 20, 2018 and July 26, 2018, Complainant filed two formal EEO complaints which consisted of the following issues: 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. 2020003841 2 Claim 1 (Agency No. 1K-221-0022-18): Whether on January 4, 2018 and continuing, the Agency discriminated against Complainant based on race (Asian/Indian) and in reprisal for prior EEO activity2 by requiring Complainant to work on machines while other lead clerks were allowed to perform lead clerk duties. Claim 2 (Agency No. 1K-221-0036-18): Whether on February 3, 2018, the Agency retaliated against Complainant for prior protected EEO activity by not selecting her for a Supervisor of Distribution Operations vacancy.3 After an investigation into the accepted formal complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing for each complaint. The AJ consolidated the two complaints. After receiving responses from both Complainant and the Agency, the AJ issued a decision, by summary judgment, in favor of the Agency. On May 20, 2020, the Agency issued a decision implementing the AJ’s finding of no discrimination.4 The instant appeal followed. On appeal, Complainant argues that she was subjected to discrimination, harassment, and retaliation. ANALYSIS AND FINDINGS 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). 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. 2 Complainant testified that she previously filed a prior EEO complaint in 2015 after she was informed by management that she would no longer perform the duties of an Acting Supervisor. 3 Complainant initially alleged that she was not selected because of her race, sex, religion, age, and in reprisal for prior protected EEO activity. However, Complainant withdrew her claim of discrimination based on race, sex, religion, and age during her deposition. 4 The AJ noted that the matter in claim 1 was precluded because Complainant raised this complaint in a prior grievance that was settled on February 2, 2018. However, the AJ did not dismiss this claim and issued a decision on the merits of the claim. Therefore, we only discuss the merits of this claim in our discussion below. 2020003841 3 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. 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. 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 his favor. 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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 Boarwd 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). The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for its actions. Removal of Lead Clerk Duties (Claim 1) The record indicates that Complainant was assigned to work the Flat Scooter Sequencer (FSS) machine and remained the FSS Clerk until she received the Lead Clerk position on January 6, 2018. However, Complainant explained that she has not been performing Lead Clerk duties ever since management instructed her to work the FSS machines. 2020003841 4 The management officials explained, however, that Lead Clerk duties included working the FSS machines. Notably, on January 3, 2018, the Plant Manager ordered all Lead Clerks to physically operate an FSS machine in their assigned operation unless there was no supervision at all in the operation. The Manager of Distribution Operations (MDO) explained in his declaration that assignment of the Lead Clerks to work the FSS machines depended on the volume of mail needing processing as well as the number of Mail Processing Clerks assigned to a particular shift. The MDO noted that mail processing volume was typically higher during Tour 1 and Tour 3, and as a result, the frequency of a Lead Clerk being assigned to work the FSS machine depended on Agency needs. However, all management officials clarified that Complainant’s pay rate remained unchanged whether she worked the FSS machines or not. Although Complainant asserted that she was treated less favorably, one of Complainant’s supervisors noted that Complainant had previously been treated more favorably than other employees by her prior supervisor. Specifically, Complainant’s supervisor explained a prior supervisor favored her by giving her a schedule change that kept her off the FSS machine which resulted in other clerks performing Complainant’s duties. Non-selection (Claim 2) The Selecting Official (SO) testified that Complainant applied for the Supervisor, Distribution Operations position. The SO acknowledged that Complainant’s name was included on the best qualified list, and consequently, Complainant was interviewed by the SO for the position. However, the SO explained that Complainant did not answer all interview questions and the questions Complainant did answer were incorrect. The SO further explained that Complainant only had experience in one of the six operations on the workroom floor, while the Selectee was well versed in all floor operations. Thereafter, the Plant Manager5 stated that he approved the SO’s section, but he clarified that he did not have any involvement with the selection process. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race or reprisal for prior protected EEO activity. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 5 Complainant identified the Plant Manager as the responsible management official in her prior 2015 complaint. 2020003841 5 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). 2020003841 6 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 October 20, 2021 Date