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

Equal Employment Opportunity Commission

Jan 28, 2021

Appeal No. 2020004530 (E.E.O.C. Jan. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachael F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004530 Hearing No. 420-2019-00345X Agency No. IG-351-0008-19 DECISION On June 12, 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 May 22, 2020, 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 At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Maintenance Operations, EAS-17, at the Agency’s Processing and Distribution Center in Mobile, Alabama. On December 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (60) when, on November 25, 2018, 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. 2020004530 2 Complainant became aware that a coworker had been selected for a Manager, Maintenance Operations Support position.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 5, 2020, motion for a decision without a hearing and issued a decision by summary judgment on May 19, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal by Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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 her favor. 2 The Agency noted that, while this is the claim as accepted, the position at issue is Supervisor, Maintenance Operations Support ("SMOS"). 2020004530 3 Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. In order to establish a prima facie case, a complainant may show that she is a member of a protected class, that she was subjected to adverse treatment, and that she was treated differently than otherwise similarly situated employees outside of the protected class. See Potter v. Goodwill Industries of Cleveland, 518 F.2d 864 (6th Cir. 1975). In the non-selection context, Complainant may establish a prima facie case by showing that she was a member of a protected class, (2) she applied for and was otherwise qualified for the position(s) at issue, (3) despite her qualifications, she was rejected, and (4) the Agency either selected someone from outside of her group or continued to seek applicants from persons with the same qualifications. McDonnell Douglas, at 802. In its motion for summary judgment, the Agency argued that Complainant failed to establish a prima facie of non-selection because the Agency published a job posting for the position and Complainant failed to submit an application. Complainant did not deny that she did not apply for the position despite its posting, but averred that she was not told that the position was available. When asked why she believed the Manager (male, 58 years old) had an obligation to tell her that the position had been posted, Complainant’s response was “Regulations in the ELM, EL312, and the EL350.” Complainant, however, did not specify what section of those regulations she was referring to, what they stated, and did not provide copies for the record supporting her contention that the Manager had an obligation to notify her about the position. The record contains copies of the Agency’s Employment and Placement Handbook EL312, and we note that a review of that document does not show that managers have a duty to notify potential candidates that a position has been posted. Complainant argues that the Manager did not want her to have the position in question “because he knew that if she did she would have an advantage applying for his position after he retired.” Complainant, however has not presented evidence establishing such a claim. We have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on her pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion 2020004530 4 for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. This, Complainant has not done. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). On appeal, Complainant argues that the Manager created a ruse to enable him to select his preferred candidate for the position. Complainant maintains that the Manager sent a memo to the Acting Plant Manager, dated July 6, 2018: Concerning the selection of then Supervisor Distribution Operations (SDO: male, 54 years at time of action) [________] (name omitted) to the vacant Supervisor Maintenance Operations (SMO) position posting No. NBl-214319. [SDO] was selected from a pool of 7 applicants. The next document in question is the Applicant Matrix Document dated 7/5/2018. This document has the same list of applicants from the correspondence that [M] sent to [the Acting Plant Manager]. This document shows that [SDO] had a raw score of 11. The issue here isn't that he was the only one that passed but that the name of the position and the posting number are different than those on the previous document. The position according to this form was the SMOS and it has a vacancy posting No. NB10214319. What [M] did was called "the old bait and switch." When [I] and the other maintenance SMOs looked on Ecareers at the vacancies, all they saw was the SMO position that [the Manager] mentioned in the document to [the Acting Plant Manager] dated 7/6/2018. Since they were already SMOs working the tour times they wanted, that vacancy meant nothing to them. This also explains why all of the other applicants failed and [SDO] was the only one to pass (even though some of the other applicants had more experience than he). They turned in KSA's for the SMO while [SDO] turned in KSA's for the SMOS position, if any of the other applicants ever questioned the process, their answers would clearly reflect that they did not properly answer the KSA's for the SMOS position. Even assuming that posting No. NBl-214319 is a different posting than posting No. NB10214319, and that the Manager did in fact mislead the other applicants, an allegation for which Complainant offers no additional supporting evidence, we note that such evidence does not tend to show that the Manager discriminated against her based on age or sex. We note in this regard that the rejected candidates consisted of both males and females, and the record shows that all of them were younger than SDO. As such any improper action by the Manager, if it indeed occurred, did not constitute discrimination based on sex and/or age. 2020004530 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has established that discrimination occurred, or that a material issue of fact exists. We therefore AFFIRM the Agency’s final order that adopted the AJ’s decision by summary judgment. 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. 2020004530 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 January 28, 2021 Date