[Redacted], Nery C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionAug 11, 2021Appeal No. 2021002923 (E.E.O.C. Aug. 11, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nery C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002923 Hearing No. 530-2014-00166X Agency No. 4C-080-0056-13 DECISION On April 20, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 12, 2021 final order concerning her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Postmaster at the Agency’s Wilmington Post Office in Wilmington, Delaware. On May 24, 2013, Complainant filed a formal complaint alleging that she was subjected to discriminatory harassment based on race (African-American), sex (female), age (over 40), color (Black), and in reprisal for protected EEO activity (prior activity) 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. 2021002923 2 1. on November 23, 2012, the District Manager (DM) sent out an email concerning a missed dispatch at one of Complainant’s post offices; 2. on November 29, 2012, DM yelled at Complainant and was rude when he spoke to Complainant about meeting with her at a postmaster meeting; 3. since February 1, 2013, Agency conducted audits in Complainant’s offices six out of ten working days; 4. on February 7, 2013, DM spoke about removing Complainant; 5. on May 16, 2013, DM sent out an email stating that Wilmington is “way out of line;” 6. the Agency required Complainant to send an email to her manager each week regarding her work hours to same period last year (SPLY); 7. Complainant has more duties, and has experienced enhanced scrutiny; 8. the Agency forced Complainant to work with fewer employees; 9. the Agency required Complainant to visit her stations more often; and 10. on June 3, 2013, DM requested that Wilmington be audited every day. After an investigation of the claims, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed its Motion for Summary Judgment. Complainant responded to the motion. Thereafter, the AJ issued a decision by summary judgement in favor of the Agency, finding no discrimination. In its March 12, 2021 final action, the Agency adopted the AJ’s decision. 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 2021002923 3 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). 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 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 is examined under the three-party 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). The undisputed facts fully support the AJ’s finding that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. On January 20, 2007, Complainant became the Postmaster of the Wilmington Post Office in Wilmington, Delaware. The Manager, Post Office Operations was Complainant’s supervisor (S1). The AJ noted that on November 23, 2012, the DM sent out an email concerning a missed dispatch at one of Complainant’s post offices. According to DM (African-American, male, black, over 40), it was his practice to send out emails to his managers/postmasters to emphasize the importance of making dispatches. He asserted that he had no intention to embarrass Complainant or her managers. Complainant asserted that on November 29, 2012, the DM yelled at Complainant and was rude when he spoke to Complainant about meeting with her at a postmaster meeting. However, the DM explained that when he first met Complainant in the presence of her supervisor, he was “very direct and maybe not as professional as I could have been. I don’t believe I yelled at her, but I surely raised my voice. I apologized to her in a subsequent meeting.” Due to the missed dispatches, the Agency began daily audits on Complainant’s station at the Wilmington Post Office. The DM also directed Complainant to visit each of her six carrier units daily. 2021002923 4 Regarding Complainant’s allegation that on February 7, 2013, the DM spoke about removing Complainant, the DM denied making the statement. The AJ noted that issues with the office continued and the DM sent out an email stating that the Wilmington Post Office was “way out of line.” Specifically, the DM stated that while he does not recall the May 16, 2013 email, he stated “it is inexcusable to have 46 carriers in the office that late. My e-mails are not directed to cause hurt feelings, but they are sent to bring attention to areas that need improvement. [Complainant] should not be satisfied with that many carriers in the office that late and should be looking at her management team to assure the problem is corrected.” The DM further stated that he did not require Complainant to send an email to S1 each week regarding her hours to SPLY. However, the DM stated that he receives the report from S1. The DM explained that Complainant does not have more duties because she is in Level 24 Office, and the Level 24 offices receive a lot of scrutiny “especially when they are not performing well.” With respect to Complainant’s allegation that she is forced to work with fewer employees, the DM stated that he was not aware of this matter, because S1 deals with those issues. S1 also asserted that Complainant did not have a reduced work force. She explained that Complainant is required to get permission from the DM to work off day overtime and if she makes a request to work 15 employees, she may only get an approval for 10 employees. With respect to Complainant’s allegation that on June 3, 2013, the DM stated that if her office received audits, the AJ noted that Complainant’s station was audited because it was struggling with missed dispatches. He also noted that the success of the Wilmington office was so important because that office was most “impactive” to the overall success of the South Jersey District. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her race, sex, age, color, and prior protected activity. Here, the preponderance of the evidence does not establish that the Agency management involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021002923 5 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision, 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. 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. 2021002923 6 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. 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 August 11, 2021 Date Copy with citationCopy as parenthetical citation