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

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 2020004706 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxine S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004706 Hearing No. 490-2016-00084X Agency No. 4G-720-0073-15 DECISION On August 25, 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 August 18, 2020, final order concerning an equal employment 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Postal Service Employee / Sales Services and Distribution Associate (PSE SSDA), Grade 6, at the Agency’s remotely managed Post Office in Jerusalem, Arkansas. On October 16, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), spouse of veteran with disabilities, age (40), and in reprisal for prior protected EEO activity (unspecified} when: 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 2020004706 1. On July 7, 2015, Complainant’s employment was terminated; and 2. On various dates thereafter, Complainant was denied re-employment. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 19, 2016 motion for a decision without a hearing and issued a decision by summary judgement on August 2, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal and through Counsel, Complainant argues that the Agency’s reasons were pretextual and that the evidence of record contained factual disputes that merited a hearing. Complainant’s Counsel asserts that Complainant had received conflicting instructions from her immediate supervisor and area management regarding her permissible use of an Agency-issued government travel card (GTC) while attending initial training for her position. According to Complainant, her immediate supervisor told her the GTC could only be used for lodging. When Complainant inquired for further clarification, an Agency human resources manager advised her to use the GTC for lodging and meals. Complainant maintained that the Agency’s regulations were less restrictive and allowed Complainant to use the GTC for meals, lodging and expenses incidental to business travel. Counsel for Complainant also challenges the Agency’s inconsistency in describing its reasons for her termination and non- selections. Complainant argues that the Agency provided different justifications for terminating Complainant and thereafter rejecting her applications to be rehired. Complainant stated the Agency’s explanations varied from improper GTC, to falsified time and attendance records, and cash-accounting irregularities. Finally, Complainant attacked the legitimacy of her termination because the Agency had neglected to follow its own regulations in processing her removal. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize both the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. 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 . . .”); also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. EEO MD-110 at Ch. 9, § VI.A. (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 3 2020004706 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”). This 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). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (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. See 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. See Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Without a hearing, an AJ cannot rule in favor of the Agency unless he ensures Complainant is given notice of the motion for decision without a hearing, a statement of allegedly undisputed material facts, a chance to engage in meaningful discovery, and an opportunity to respond. According to the U.S. Supreme Court, if the party opposing summary judgment has not had the opportunity to discover information essential to her opposition, then summary judgment is precluded. See Anderson, 477 U.S. at 250. In the EEOC hearing context, this means that the AJ must enable the parties to engage in sufficient discovery necessary to properly respond to any motion for a decision without a hearing. Here, we find the AJ appropriately issued a decision without a hearing. The record revealed Complainant had notice of the Agency’s motion, the Agency presented its version of the facts. The AJ permitted Complainant ample discovery and the opportunity necessary to contest the Agency motion. Finally, in issuing the decision without a hearing, we note that the AJ properly drew justifiable inferences in Complainant's favor. EEOC examines discrimination claims in accordance with the U.S. Supreme Court's three-part test from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she must first establish her prima facie case by presenting facts that reasonably give rise to the inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The second burden is for the Agency to articulate a legitimate and nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency can 4 2020004706 articulate a legally sufficient reason behind its actions, then the Complainant bears the burden of proving, by preponderance of the evidence, that those Agency reasons are pretext to mask any actual discriminatory motive. At all times, Complainant must carry the burden of persuasion; she must prove, with preponderant evidence, Agency adverse actions were motivated by illegal animus against her protected characteristics. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711,715-716(1983). Assuming, arguendo, that Complainant has made the prima facie case, we find the Agency articulated both legitimate and nondiscriminatory reasons for its adverse employment actions. Complainant has failed present persuasive evidence to establishes that those Agency's proffered reasons were unworthy of credence. Claim 1 - Removal The Officer-in-Charge (female, Caucasian, age 47), who interviewed and recommended Complainant’s hire, was the same Officer-in-Charge that later recommended Complainant’s removal. The Officer-in-Charge testified that it was Complainant who had requested the Agency GTC because she would otherwise be unable to afford travel to her initial training in Little Rock. The Officer-in-Charge stated she had instructed Complainant to use the GTC only for lodging. The Officer-in-Charge stated that, after Complainant attended the training, the Officer-in-Charge learned the Agency had “flagged” or questioned some sixteen transactions which Complainant had made using the GTC. Two of these sixteen questionable transactions had occurred on the day before and on the day after Complainant’s authorized travel dates. One of Complainant’s GTC transactions indicated that she had improperly used the GTC in a different state (Oklahoma) which had no relation to the Agency-sponsored training that Complainant attended in Arkansas. After Complainant returned from initial training, the Officer-in-Charge described how, Complainant arrived approximately fifty minutes late for her first day of on-the-job training. Complainant did not deny her tardiness, but merely stated that she had told the Agency she would be late because of a family emergency. Based on these undisputed facts, we find the Agency’s reason for Complainant’s removal legitimate and non-discriminatory. To the extent Complainant argued that certain management officials within the Agency had misused the GTC, we note that those officials were not proper comparators. The named comparators were Postmasters who had a record of years of service with the Agency that warranted advancement, while Complainant’s conduct occurred while she was still a probationary employee. Claim 2 - Post-Removal Non-Selections Following her removal from the Post Office in Jerusalem, Complainant applied for similar Arkansas vacancies at Wesley, Vilonia, Ratcliff, and Branch in Arkansas. Complainant also applied for an entry-level vacancy Greenville, South Carolina. The Agency officials that considered her applications after removal provided legitimate and nondiscriminatory reasons for declining to select Complainant to fill available vacancies. The Agency explained that Complainant was found unsuitable for all of the aforementioned positions. In some cases, selection officials declined to hire Complainant after learning of her GTC misuse during her 5 2020004706 employment at the Jerusalem Post Office. Other selection-officials stated they were concerned that Complainant had expressed her intention to reside in communities that were inconveniently distanced from prospective workplaces. Moreover, Complainant did not indicate that if hired, then she would be willing to move closer to her duty station. Whether managers declined to hire Complainant based on reports of GTC-use or distance from possible employment locations, we find that such explanations are non-discriminatory. In summary, our review of entire record found nothing to demonstrate the Agency was motivated by discriminatory animus. To the contrary, we find that Complainant failed to establish that she was discriminated against as alleged. Furthermore, Complainant failed to convince us that the Agency’s rationale for removing and then not rehiring her was pretextual. CONCLUSION Based on the foregoing in depth analysis of the entire record and all of Complainant's contentions on appeal, we AFFIRM the Agency's final order adopting the AJ's decision issued without a hearing finding no discrimination. 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. 29 C.F.R. § 1614.405; EEO-MD-110 at Ch. 9 § VII.B. Complainant should submit her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, which can be found at: https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit 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 6 2020004706 reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 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). 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 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. 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. 7 2020004706 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 28, 2021 Date