U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam D., Amina W., Jordon S., Laverne O., Sheena S., Milton D.1 Complainants, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal Nos. 2019002085, 201902225, 2019002334, 2019002745, 2019002765, 2019002940 Hearing Nos. 520-2017-00433X, 520-2017-00285X, 520-2017-00402X, 520-2017-00373X, 520-2017-00336X, 520-2017-0040X Agency Nos. 1B-031-0002-17, 1B-031-0026-16, 1B-031-0004-17, 1B-031-0005-17, 1B-031-0003-17, 1B-301-0006-17 DECISION This matter comes before this Commission from six appeals filed by six Complainants, pursuant to 29 C.F.R. § 1614.403(a), from six respective Agency final orders, issued on November 8, 9, 1 This case has been randomly assigned a pseudonym which will replace each Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019002765, et. al. 2 and 10 of 20182, concerning equal employment opportunity (EEO) complaints alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. These appeals were docketed by the Commission’s Office of Federal Operations under EEOC Appeal Nos. 2019002765, 2019002225, 2019002334, 2019002940, 2019002085, and 2019002745. As a threshold matter, EEOC regulations allow the Commission to consolidate two or more complaints filed by two or more complainants consisting of substantially similar allegations of discrimination or relating to the same matter. 29 C.F.R. § 1614.606. Accordingly, for the sake of clarity and administrative efficiency, we exercise our discretion and consolidate the above- referenced appeals. For the following reasons, the Commission AFFIRMS the Agency’s final orders. BACKGROUND At the time of events giving rise to this complaint, all six Complainants worked as Career Mail Handlers at the Agency’s Nashua Processing and Distribution Center (P&DC) in Nashua, New Hampshire. All six Complainants were over 40 years old at the time of the events giving rise to these complaints. Complainants were all under the supervision of Plant Manager, Level 25, (hereafter “Plant Manager”) at the Nashua P&DC. Plant Manager was responsible for making organizational and processing decisions at the Nashua P&DC. At the time giving rise to their complaints, Complainants’ coworker (hereafter “Coworker One”) was also a Mail Handler at the Nashua P&DC, was supervised by Supervisor, and was 38 years old. The record reveals Career Mail Handler employees are guaranteed, by Union rules, a regular schedule of five eight-hour days in a work week. Non-career Mail Handler Assistants are transitional employees who have no daily to weekly work hour guarantees. Complainants all had bid assignments as shape sort mail handlers. Plant Manager stated shape sort positions are not eight-hour positions. Around September 2016, Plant Manager informed the Union and Complainants all shape sort positions would be abolished. At the time, there were nine shape sort jobs at that location. Plant Manager stated she made the decision to abolish the positions because those positions were needed elsewhere, and the job was going to be outsourced in the near future. Plant Manager stated before abolishing the positions, she notified the Union and took the Union’s information and considerations under advisement. 2 Upon a request by one Complainant and inquiry by an EEOC Administrative Judge (AJ), all parties were asked if they objected to consolidation of all six complaints. All six Complainants agreed and the Agency did not object to the consolidation. On August 9, 2018, the AJ issued an Order Following Pre-Hearing Conference in which all six complaints were consolidated. While the AJ issued one decision granting summary judgment, the Agency issued six separate final orders for Complainants. Three final orders were issued November 8, 2018. Two final orders were issued November 9, 2018. One final order was issued November 10, 2018. 2019002765, et. al. 3 Plant Manager transitioned this work to the non-career workforce. Plant Manager explained non- career mail handler assistants’ schedules and flexibility are better suited for these types of ancillary jobs, which are not eight-hour per day. She elaborated that career mail handlers are better working in other areas where she can give them the guaranteed eight-hour days per Union rules. In October and November 2016, Complainants filed separate EEO complaints alleging that the Agency discriminated against them on the basis of age (over 40) when on September 3, 2016, their bid assignments in the shape sort area were abolished. At the conclusion of the investigation, the Agency provided each Complainant with a copy of the report of investigation and notice of their right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Each Complainant timely requested a hearing. The Agency did not object and Complainants agreed to the AJ’s consolidation of the six complaints. Over Complainant's objections, the AJ granted the Agency’s September 24, 2018, motion for a decision without a hearing and issued a decision without a hearing on November 1, 2018. The Agency subsequently issued final orders on each complaint adopting the AJ’s finding that the Complainants failed to prove that the Agency subjected them to discrimination as alleged. Complainants’ representative filed the instant appeal. On appeal, Complainants argue the AJ erred in finding the Agency's proffered reasons for abolishing the jobs were legitimate. Complainants also argue that the grounds for abolishment, including that the position was not an eight-hour job and was imminently going to be outsourced, were both pretextual arguments that have no basis in fact or evidence. Complainants cite to Plant Manager’s statement that mail handlers "would drag it out" to make it an eight-hour task as evidence of the bias Plant Manager had towards these older employees. The Agency did not file a response to Complainants’ appeals. ANALYSIS AND FINDINGS 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. (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 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. See id. at Chapter 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 record, including any timely and relevant submissions 2019002765, et. al. 4 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”).We determine whether the AJ appropriately issued the decision without a hearing. The 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (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. 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. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “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. See 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, Complainants must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainants have failed to present any facts in dispute. We find the AJ properly issued a decision without a hearing to resolve Complainants’ complaints as there is no disputed issue of material fact. In order to prevail in a disparate treatment claim, Complainants must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainants must initially establish a prima facie case by demonstrating that they were subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non- discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainants must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Even if the claims occurred as alleged, Complainants failed to show that the responsible Agency officials were in any way motivated by discriminatory animus. In addition, the actions taken by the alleged discriminating officials were routine managerial actions, such as eliminating bid assignments, reassigning and modifying job duties, which, absent discriminatory animus, will not be second-guessed by the Commission. We note that Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). 2019002765, et. al. 5 Having reviewed the various claims and arguments made by both parties, we find, assuming arguendo Complainants established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions which Complainants have failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep't of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an Agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainants to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainants have failed in this regard. Here, Plant Manager explained that in order to address the impending outsourcing of the shape sort bid assignments as well as insufficiency of the positions to fill the required eight-hour work day for career mail handlers, she made the decision to abolish the nine shape sort positions and reassign these job duties to noncareer mail handler assistants. Rather then allow Headquarters to eventually take these positions away from career mail handlers, Plant Manager stated it made sense to her to have non-career employees fill these positions that are not eight-hour per day positions until Headquarters officially outsources the positions. Plant Manager explained by abolishing them before they were taken away, the Agency was protecting the full-time regular workforce. Plant Manager stated the decision was made for purely operational reasons and was not based on Complainants’ age. Complainants’ argue that Plant Manager’s statement in an email that Complainants “drag it out” shows bias based on their age. However, we are not persuaded by this argument. In an email to a labor representative, when asked how mail handlers had been meeting the eight hours of work per day required under Union rules while working in the shape sort assignments, which Plant Manager defined as six hours of work per day, she stated “they drag it out.” Even construing all evidence in favor of Complainants, this evidence does not show discriminatory animus. We find that Complainants’ evidence fell short of linking management’s conduct to unallowable considerations of their protected status, as employees over 40 years old. Moreover, Complainants have failed to establish that similarly situated individuals outside of their protected class were treated more favorably to show the Agency’s reasons were pretextual. Specifically, as the AJ noted in the summary judgment decision, the record establishes one of the nine shape sort bid assignments that was abolished by Plant Manager was held by Coworker One, who was under 40 years old at the time giving rise to these complaints. We agree with the AJ’s finding that the evidence failed to demonstrate that management’s actions were rooted in impermissible discrimination. Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. 2019002765, et. al. 6 Based on the foregoing, we find that Complainants have failed to provide any evidence that the incidents cited in the complaint, if they occurred as Complainants allege, were motivated by discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final orders. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2019002765, et. al. 7 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, 2020 Date
