[Redacted], Zula G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2021000468 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zula G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021000468 Hearing No. 560-2019-00174X Agency No. 4J-630-0099-18 DECISION On October 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2020 final action 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. BACKGROUND During the relevant period, Complainant worked as a Sales, Services, Distribution Associate (SDDA) clerk at the Agency’s Columbia Post Office in Columbia, Missouri. On August 29, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her in reprisal for EEO activity (prior EEO activity) when: 1. since March 26, 2018, she was denied overtime opportunities; 2. since March 26, 2018, she was not permitted to waive her lunch as her co-workers were permitted; 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. 2021000468 2 3. since March 26, 2018, she was not permitted to work her bid position. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter the Agency submitted a Respondent’s Motion and Memorandum in Support of Summary Judgment. Complainant responded to the Motion. The AJ issued a decision by summary judgment in favor of the Agency on September 21, 2020. The Agency thereafter issued the instant final action implementing 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 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 a complainant to prevail, he 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). 2021000468 3 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). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for its actions. During the relevant period, Complainant worked as a Sales, Services, Distribution Associate (SSDA) clerk at the Agency’s Columbia Post Office in Columbia, Missouri. The Supervisor Customer Service was Complainant’s supervisor. Another Supervisor Customer Service (Supervisor 2) was one of Complainant’s supervisors. Both the supervisor and Supervisor 2 were aware of Complainant’s prior EEO activity. Regarding claim 1, Complainant asserted that since March 26, 2018, she was denied overtime opportunities. Specially, she stated that she was denied overtime opportunities, while these opportunities were provided to two named clerks and to a General Expeditor. The Postmaster explained that “no bargaining unit employee is guaranteed overtime even if they have signed up on the overtime desired list. Management makes every effort to equalize overtime and assign it fairly amongst employees. Overtime assignment and approval is based on the needs of the operation on a given day. This often varies because of employee availability, employee training and skills as it applies to the overtime work available, volume of mail, and how busy the window is.” The Postmaster stated that Complainant was signed up for all of the overtime desired lists, including 2 hour, 12 hour, and a non-scheduled day. The Postmaster stated further that she and other supervisors “made every effort to authorize non-scheduled day overtime on an alternating basis. Both Complainant and [named SSDA Clerk] had a non-scheduled day of Tuesday, and if the type of overtime work needed allowed for it, we made every effort to alternate by each week, or double up in order to equalize throughout the quarter.” Complainant’s supervisor asserted that Complainant was not denied overtime opportunities on April 25 and 27, 2018, and May 1, 2018. He stated management officials “do not deny overtime…we schedule overtime to fill the needs of the service.” The supervisor explained that one of the two Clerks (Clerk 1) is on a different shift and different capacity than Complainant. Regarding the second clerk [Clerk 2], the supervisor stated that Clerk 2 and Complainant “share the same day off. They are rotated on working nonscheduled days. If one of them is skipped, we try to correct by working the other two occurrences in a row. Often neither work on their nonscheduled day due to low work volume on that particular day of the week. There is no favorable treatment.” Finally, the supervisor asserted that the General Expeditor “on occasion will work his nonscheduled day if there is no one to back his position up. [General Expeditor] [is] not treated more favorably.” Regarding claim 2, Complainant alleged that since March 26, 2018, she was not permitted to waive her lunch as her coworkers were. 2021000468 4 The supervisor explained that Distribution Clerks are allowed to waive their lunch for the benefit of the organization to get the mail to carriers and “waiving lunch does not guarantee overtime. SSDA clerks are not allowed to waive their lunch, as there is a window of operation that needs to be staffed for the entire business day. On rare occasions, SSDAs will be allowed to waive their lunch if the window is short-staffed of for personal or medical emergencies.” Regarding claim 3, Complainant alleged that since March 26, 2018, she was not permitted to work her bid position. The Postmaster noted that a SSDA clerk performs distribution and a variety of sales and customer support services for products and “included in the duties and responsibilities, is performing any variety of sales and customer services at the retail window.” The Postmaster stated that Complainant was the successful bidder on job #70168880 on May 5, 2011 and held that bid during the relevant time period in 2018 and 2019. She stated that based on Complainant’s duties, working the retail window is one of Complainant’s primary duties. The Postmaster noted that the union “has agreed with this, stating it is not a contractual violation for Complainant to work the window as one of her primary duties, and that she cannot ‘stand around and wait for someone to ring the buzzer in Room 101.’” The Postmaster further stated that the retail window is “much busier than Room 101, and regularly backs up with customers. This often happens certain times of the day, in the evenings, and on Saturdays when there are usually only three (3) SSDA clerks assigned, including (1) clerk that is almost exclusively handling Passport processing.” The supervisor noted that Complainant believed that her principle location is Room 101 only, and “she felt that she should not have to work the window at all when coverage was needed.” She feels that whenever she is pulled out of Room 101 to work the retail window, she is “not permitted to work her bid position” because she is unavailable to do the job she bid to do, which is her principle location Room 101. Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask retaliatory animus. To the extent that the subject claims are considered in the context of harassment, we similarly determine that Complainant has not satisfactorily demonstrated that the Agency subjected her to retaliatory discriminatory harassment. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her prior protected activity. 2021000468 5 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment, 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. 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. 2021000468 6 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 February 9, 2021 Date Copy with citationCopy as parenthetical citation