[Redacted], Leon B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Apr 19, 2021

Appeal No. 2020000642 (E.E.O.C. Apr. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000642 Agency No. 1F914000319 DECISION On September 27, 2019, 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 September 16, 2019, final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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 worked as a Mail Handler at the Agency’s Bakersfield Processing and Distribution Center facility in Bakersfield, California. On October 17, 2018, Complainant made EEO contact. On January 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for unspecified prior protected EEO activity, when: 1. From August 18, 2018 to October 10, 2018, he was displaced from his job bid by a female employee; 2. Between September 13 and October 5, 2018, Complainant was pressured by management to work quickly and to handle the majority of the work; and 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. 2020000642 2 3. On October 10, 2018, Complainant was issued a letter advising him that his bid would be abolished effective on October 19, 2018. The Agency’s Acceptance for Investigation letter informed Complainant that it was accepting claim one as alleging discrimination as of September 2, 2018, rather than August 18, 2018.2 The pertinent record reveals the following information. Complainant named two management officials as responsible for the alleged discrimination: 1) the Supervisor, Distribution Operations (male) (“Supervisor”) and the Manager, Distribution Operations (female) (“Manager”). He identified his EEO activity as vocal protests and grievances regarding the manner in which the Agency was making assignments and his perceptions of violations of the collective bargaining agreement. He had no prior EEO complaint. Claims One and Two Complainant accepted an e-assignment to the Bakersfield Plant on August 18, 2018. He did not go through the bid process to obtain the job in question. He worked the job until October 19, 2018. The record lacked evidence that Complainant was pressured to work differently than others. Complainant believed that the female employees were being accorded more favorable treatment. He objected to the Supervisor’s instructions as to how the work was to be accomplished. The Supervisor acknowledged that Complainant brought “complaints, but never raised discrimination.” Complainant asserted that management was abusing the “Other Duties as Assigned” portion of the job description. He expressed verbal objections to the Supervisor when others were assigned to the area where Complainant was assigned. He also filed a grievance on the matter. Claim Three On October 9, 2018, the Agency issued Complainant a letter, which informed Complainant that management determined that Complainant’s current JOB ID #71857819, Tour 3 Mail Handler no longer matches operational requirements, and that, effective at the end of his tour on October 19, 2018, his bid assignment will be abolished. The Agency stated that the change was “part of our overall efforts to adjust our staffing requirement to changing operations.” The letter also advised him that, on October 20, 2018, Complainant would become an unassigned Mail Handler. The notice told Complainant that he “may wish to use [his] seniority to bid for an assignment on the next posting.” 2 The Agency acknowledged that Complainant alleged he was displaced beginning August 18, 2018, but the Agency reasoned that the August date was outside of the 45-day period for contacting an EEO Counselor. Nevertheless, because Complainant was alleging a continuing violation, the Agency accepted the claim, but substituted the September 2, 2018 date. 2020000642 3 The record shows that Complainant and all mail handlers assigned to the same opening unit area received the abolishment letter, including the female employees. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In that decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Complainant had not engaged in prior EEO activity and that “there was no credible evidence that his female co-workers were treated any differently than he was treated.” The Agency also found that Complainant had not been displaced by a female employee from his bid assignment. The Agency noted that the Supervisor averred that “all of the bids in the opening unit were abolished in October of 2018” and he denied that any of the female co-workers were treated more favorably than he was treated. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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 Constr. 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 Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). 2020000642 4 Reprisal To prevail in a disparate treatment claim, Complainant must generally satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas v. Green. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. In this case, however, we find that Complainant had not engaged in any activity protected by Title VII prior to the abolishment of his bid position. The officials deny any knowledge of any prior EEO activity and Complainant did not offer evidence to refute the statements. The reprisal claim fails. Sex discrimination Similarly, the evidence did not establish his claims of sex discrimination. Management testified that all of the employees assigned to the unit received the same treatment and the same notice of the abolishment of the bid assignments. In addition, the witness testimony demonstrated that the female employees did not receive better treatment. Assuming Complainant established his prima facie claims, we find that the Agency articulated a legitimate, nondiscriminatory reasons for the disputed actions, including the abolishment of the bid assignments. The Supervisor directed the workers to move the mail in the manner he thought most effective. This sometimes involved having the workers assist each other, regardless of their official bid designation. The Agency abolished the bid assignments to adjust the staffing requirements to meet its changing operations. Although Complainant questioned the Agency’s reasons, he did not refute the Agency’s stated reasons or otherwise prove unlawful discrimination. CONCLUSION We find that the preponderance of the evidence supports the Agency’s decision and that Complainant did not prove unlawful discrimination. Accordingly, we AFFIRM the Agency’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. 2020000642 5 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). 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. 2020000642 6 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 April 19, 2021 Date