[Redacted], Judie D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2020004844 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judie D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004844 Hearing No. 420202000032X Agency No. 1G351004419 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s [insert date] 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 At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Maintenance Mechanic ("MM"), PS-07, Mail Processing Equipment ("MPE") at the Agency’s Processing & Distribution Center ("P&DC") in Birmingham, Alabama. On August 2, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the basis of sex (female) when, on April 11, 18, 19, 25, and May 2, 2019, she was denied the opportunity to work overtime in Building Equipment Maintenance (“BEM”). 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. 2020004844 2 The Agency accepted the complaint and conducted an investigation which revealed the following relevant evidence. In January 2016, Complainant was hired as an MM, where she reported to the MPE Supervisor, Maintenance Operations, EAS-17, (“S1”) (male). In 2018, Complainant states that she became the first female MM in the Birmingham Alabama P&DC to successfully bid into a BEM position. She reported to the BEM Supervisor, Maintenance Operations, EAS-17 (“S2”) (male). Yet, a few months later, she was informed that her position was to be abolished as part of the Agency’s implementation of a new staffing package. Management was required, under the collective bargaining agreement between the Agency and the Union, to adhere to staffing packages when assigning and scheduling MMs in P&DCs. Staffing packages were negotiated at the national level and identified MM assignments by labor distribution codes (“LDCs”). At the Birmingham P&DC, Level 7 MM, were assigned to either the BEM Occupation (LDC 37) or the MPE Occupation, (LDC 36). The only distinction between the two units was the equipment the MMs worked on. Regardless of how their position was coded, Level 7 MMs were qualified to work on both MPE and BEM assignments. The Birmingham Alabama P&DC Maintenance Engineering Specialist, EAS-19, (“M1”) (male) testified that staffing packages were created “to better reflect staffing levels based on accurate equipment inventory and the agreed upon times and frequencies to support the equipment.” According to M1, Complainant’s position was not “abolished,” under the staffing package, but “shifted” from LDC 37 to LDC 36. The Agency was in the process of shifting all of its Level 7 MMs from LDC 37 to LDC 36, M1 reasoned that Complainant was the “junior” Level 7 MM, so she was shifted from LDC 36 to LDC 37 upon the implementation of the staffing agreement. M1, S1, and S2 all testify that the change in the number of LDC 37 MMs was outside of their control. Effective March 2019, Complainant’s MM position was re-coded to LDC 36, Postal Operating Equipment, and she resumed reporting to S1 as her supervisor, and completing MPE tasks. She retained the same level, tour, and non-scheduled days. Complainant contends that ever since returning to MPE, S2 has offered her former BEM job duties as overtime assignments to two of her male coworkers (“C1” and “C2”) with less seniority, as both were hired in Spring 2017. After Complainant’s position was “shifted,” S2 states that he needed MMs to work on building maintenance assignments, so he asked S1 to offer an LDC 37 overtime opportunity to two MPE MMs on their scheduled days off. S2 testified that he did not request a specific MM for the overtime assignment, but rather, S1 offered the overtime opportunity to C1 and C2 based on staffing needs within MPE. According to S1, Tuesday, Wednesday, and Thursday, which are all days Complainant works, are the least short-staffed days for MPE. C1 and C2 had their regular days off on Wednesday and Thursday and were eligible to work overtime. S2 states that Complainant has been assigned overtime “in an equitable fashion,” but in MPE, rather than BEM, as Complainant’s off days happen to be the days where MPE is understaffed. 2020004844 3 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The Agency filed a motion for a decision without a hearing (summary judgment), to which Complainant failed to file a response. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant 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. 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 to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020004844 4 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). The Agency cites the staffing package, re-coding Complainant from LDC 37 to LDC 36, along with her scheduled days off as its legitimate nondiscriminatory reason for effectively causing Complainant to no longer work on Building maintenance assignments. The Commission has previously accepted adherence to the terms of a staffing package as a legitimate nondiscriminatory reason for alleged discriminatory actions. See, e.g. Salih v. United States Postal Serv., EEOC Appeal No. 01A51145 (Jan. 24, 2006) (manager enforcement of the complainant’s schedule in accordance with the staffing package, which was intended to ensure efficiency), Anderson v. United States Postal Serv., EEOC Appeal no. 0120061524 (Apr. 13, 2007) (change in days off based on bid and staffing package, intended to prevent gaps in coverage). Complainant was shifted to LDC 36 in accordance with a staffing package, so her duties during her scheduled work days are MPE duties, even though there is apparently still a need for LDC 37 work. The Agency acted within its business judgment when implementing the staffing package when it opted to offer overtime rather than assign Complainant LDC 37 duties. As for additional overtime opportunities, Complainant's off days were Sunday and Monday and the MPE side has the fewest MMs staffed on those days. S2 testified that the day he required the most assistance was Thursday, and sometimes on Friday, which were also the days that S1 could most afford to spare an overtime employee. Complainant does not dispute that C1 and C2’s off days aligned with S2’s overtime needs. S2 testified that unless there was a special project, there was not a great need for additional MMs on Sundays and Mondays, whereas there was a need on the MPE side. S2 also indicates that some of the tasks he requested overtime employees to complete were not compatible with Complainant’s work hours. He sums up the matter as “Complainant wants her bid back, which is understood. However, that is not up to us.” 2020004844 5 The record reflects, that Complainant was still provided with overtime opportunities on her scheduled days off, but none of the overtime was LDC 37. Complainant’s only submission during the pre-hearing process is a witness list containing a single witness, another MM, who she contends “was present during some of the dates and witness[ed] lack of staffing on the Mail Processing Equipment side on Wednesdays and Thursdays,” which, on its own, is insufficient to overcome an AJ’s decision by summary judgment. Complainant has not addressed how the Agency’s explanation that the staffing package resulted in her lack of opportunities for overtime specific to BEM assignments, was pretext for discrimination based on sex. To the extent that Complainant disagrees with the staffing package allotment of LDC 37 positions at the Birmingham P&DC, such an allegation must be raised through the Union. Based on the record and the Parties’ submissions, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION 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. 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). 2020004844 6 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. The court has the sole discretion to grant or deny these types of requests. 2020004844 7 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 6, 2021 Date