[Redacted], Raymond R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020001697 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raymond R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020001697 Agency No. 6U-000-0037-18 DECISION On December 12, 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 November 8, 2019 final decision concerning his 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Operations Specialist, EAS-23, at the Agency’s International Policy and Business Development Office in Honolulu, Hawaii. On September 17, 2018 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Caucasian), sex (male), color (White), age (63), and in reprisal for prior protected EEO 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. 2020001697 2 1. On August 13, 2018, he learned he had not been selected for the Manager International Policy and Business Development position; 2. On October 25, 2018, his manager never responded to his August 14, 2018 request for travel approval to attend a work-related meeting in Washington, D.C; 3. On September 25, 2018, his request for travel approval for a trip to the Los Angeles Service Center on October 9, 2018 was denied; 4. On September 29, 2018, Complainant was notified that his EAS-25 detail would not be extended; 5. Since October 1, 2018, and continuing, he had been required to do the work of the Director Asian Pacific Relation position, despite no longer being on the EAS-25 detail; 6. On January 11, 2019, Complainant became aware that he had not been offered the opportunity to detail to the position of Acting Manager of International Policy and Business Development; 7. On February 4, 2019, he received an email from the Acting Manager in which she told Complainant he was still expected to do the work assigned to the Acting Manager position despite not being selected for the detail to the position; 8. On February 14, 2019, he was issued a Letter of Warning (LOW); 9. On April 2, 2019, Complainant’s appeal of the Letter of Warning was denied; and 10. On April 15, 2019, Complainant was notified that his Step B appeal was denied and, subsequently, on May 17, 2019, his appeal to the Headquarters’ Labor Relations for the LOW was denied. Complainant identified the Executive Director (Caucasian, White, male, age 54) (ED) and the Managing Director (Caucasian, female, age 56) (MD) as the responsible management officials. Complainant worked alongside the former retired Director, who was at the Postal Career Executive Service (PCES) level until the Director retired on March 30, 2018. Complainant was an EAS-23 level Operational Specialist. Complainant averred that he started his career as a Postal Assistant and during his 44-year career, he rose through the ranks, including serving as a “manager in-plant support” before becoming an EAS-23 Operations Specialist under the former Director Asia Pacific Relations, which was a higher-level executive position. Complainant averred that, from the Director’s retirement date through the day Complainant left the Agency on April 4, 2019, Complainant performed all the duties of the former Director Asia Pacific Relations. Complainant affirmed he has demonstrated his “competence, knowledge, and ability to run all aspects of a postal operation, including managing and supervising others.” Complainant acknowledged that the former Director’s PCES position was an incumbent-only position. When the Director Asia Pacific Relations retired, the position was eliminated. Following the retirement of the Director, the Agency created a new executive level V-01 level position in Global Business, which was the Manager International Policy and Business Development. 2020001697 3 The Agency posted the vacancy internally from June 12, 2018 to June 27, 2018. The position incorporated the former Director’s duties and responsibilities. There were 10 listed duties and responsibilities. Four of the 10 specifically listed Freely Associated States (FAS) or FAS countries by name and the additional duties pertained to the Asian Pacific region. The competition was open to all non-bargaining career Postal employees service-wide. Complainant applied. A three-person committee reviewed the applications. Based on the committee recommendations, three candidates, including Complainant, were referred for an interview. ED conducted the interviews on July 12, 2018. ED averred that he did not select Complainant for the Manager International Policy and Business Development position because he did not deem Complainant the best qualified. ED averred that, although Complainant did well on specific questions related to FAS, he did not adequately address the other questions and was actively dismissive of the questions; and he did not have any “manager” experience related to managing the work of others. ED acknowledged that Complainant was a Subject Matter Expert on FAS, but the position was for a Manager and the position had oversight for a broad range of responsibilities, not just his area of expertise. On July 12, 2018, ED selected the Selectee (M1), a younger African-American woman. Her effective start date was July 21, 2018. The Selectee was already in a higher-graded position (EAS-25) than Complainant’s EAS-23 position. The selectee was known to ED, because she had worked closely with him. On August 9, 2018, Complainant requested travel approval from ED to go to the Agency Headquarters in Washington, D.C. to discuss improving mail service in the FAS. ED did not respond. ED averred Complainant sent his travel request to the wrong person. ROI, Ex. 60, p. 901-912. The travel request was later denied, because the proposed dates did not align with the other team members being able to also join him and the “return on investment was insufficient to approve the travel only for observation.” On September 25, 2018, ED denied Complainant’s request to travel to Los Angeles in October 2018 because the dates did not work for the others on the team. ROI, Ex. 6, p.33. Complainant asserted there was no legitimate reason to send additional personnel since Complainant was the only knowledgeable one and it would have cost more to send staff from D.C. ED averred that travel authorization is not automatic and is left to the discretion of management. The record shows that Complainant was on a detail for a set period, ending September 28, 2018, or through the end of the fiscal year. ED averred the detail was not extended because the detail was no longer needed as all the positions had been filled and the purpose of the detail was to assist with any transition until the vacant position was filled. ROI, Ex. 39, p. 610. Complainant said that the ED’s statements are not credible because ED asserted that the higher-level positions were being aligned to be Europe-focused which proved to be false as ED detailed other employees to higher-level positions with Asia Pacific and FAS-focused details, but refused to detail him at a higher-level for doing the same or more FAS-related work. 2020001697 4 On December 10, 2018, ED detailed another employee, Classification Specialist (CS), EAS-25, who was a Caucasian woman and under age 40, into the Acting Manager of International Policy and Business Development position. ROI, Ex. 67, p. 994. On January 8, 2019, M1 told Complainant that CS would be joining the team. CS and M1 were to be “co-managers.” ED and M1 stated that Complainant was not given the detail assignment to serve as the Acting Manager, because he was not located at HQ and he had less exposure to the portfolio than the person detailed to serve as an acting manager. On January 23, 2019, during a Universal Postal Union (UPU) teleconference, Complainant raised what he considered to be “legitimate concerns that the FAS option was doomed to fail because of [M1’s] inexperience” and lack of qualifications for the Manager’s position. Complainant also shared with the teleconference participants that he was not selected for that position, because of management’s perception of M1’s greater experience. Complainant then sent a summary of his teleconference comments to the remaining team members, who were not on the call. ROI, Ex. 40, p. 632-633. CS issued Complainant a disciplinary Letter of Warning (LOW) because of his inappropriate and unprofessional behavior during the meeting/teleconference in which he disparaged his chain of command and the qualification of M1 and expressed his dissatisfaction with his non-selection. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Complainant was not subjected to discrimination or reprisal as alleged. This appeal followed. ANALYSIS AND FINDINGS Section 717 of Title VII requires that federal agencies make all personnel actions free of race and sex discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color or sex”). Reprisal is also unlawful under Title VII. Similarly, Section 633(a) of the ADEA requires that federal agencies make all personnel actions free of age discrimination. See 29 U.S.C. § 633(a). 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 Complainant to prevail, he 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020001697 5 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming, for purposes of this decision only, that Complainant established a prima facie case of discrimination based on his race, sex, color, or previous EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions as were set forth in detail above. We also find no evidence of pretext. Complainant has simply not provided any evidence that raises the Agency’s actions were motivated by discrimination. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for a complainant to disagree with or question the Agency's actions. A complainant must show that discrimination was the real reason for the Agency's actions. Complainant has not done so here. Finally, to the extent that Complainant contends that he was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, the Commission finds that Complainant has not established that he was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final 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. 2020001697 6 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. 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. 2020001697 7 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 16, 2021 Date