Melodee M.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2020004355 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melodee M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004355 Agency No. 1B-021-0017-19 DECISION On April 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 27, 2020 final decision 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 period at issue, Complainant worked as a Mail Handler at the Agency’s Boston Processing and Distribution Center (P&DC) in Boston, Massachusetts. On November 5, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on sex (female), disability, age (over 40), and in reprisal for prior EEO activity (Agency No. 1B-021-0039-04) when: 1. beginning on June 23, 2019 and ongoing, she was not afforded the opportunity to work overtime on her non-scheduled days (Sunday/Wednesday); and 2. beginning with the July 4, 2019 holiday and continuing (Labor Day, Columbus Day, etc.), management has not afforded her the opportunity to work on holidays. 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. 2020004355 2 After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its March 27, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation.2 The instant appeal followed. ANAYLSIS AND FINDINGS A claim of disparate treatment is examined under the three-part 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. 2 Complainant identified her disabilities as arthritis/knee replacement and spinal fibromyalgia. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2020004355 3 Complainant has worked as a Mail Handler at the Agency’s Boston P&DC in Boston, Massachusetts. Regarding claim 1, Complainant asserted that beginning on June 23, 2019 and ongoing, she was not afforded the opportunity to work overtime on her non-scheduled days (Wednesday/Sunday). The Supervisor Distribution Operations (male, over 40) was Complainant’s supervisor during the relevant period. The supervisor explained that Complainant was not afforded the opportunity to work overtime due to her restrictions. Specifically, the supervisor stated that Complainant could not perform the duties of her bid assignment. He noted that Complainant did not work on her bid assignment on a daily basis and that she was assigned to work in the Wrap Section of Headcase (the Mail Recovery Unit). Further, the supervisor explained that Complainant was not guaranteed overtime. The supervisor stated that per the Local Memorandum of Understanding between the Agency and union indicates that overtime was scheduled by tour, section and availability. Moreover, the supervisor stated that he did not discriminate against Complainant based on her sex, disability, age and prior protected activity. The Senior Manager, District Operations (male, over 40) stated that Complainant provided Agency management several medical statements since 2013 “which outlined her restrictions. I recall receiving a few of [Complainant’s] updated medicals. In March 2016, [Complainant] provided medical documentation to me indicating her restrictions were permanent. Therefore, I did not request any additional updates.” Regarding claim 2, Complainant alleged that on beginning with the July 4, 2019 holiday and continuing (Labor Day, Columbus Day, etc.), management has not afforded her the opportunity to work on holidays. The supervisor averred that due to Complainant’s restrictions restrict her from working on holidays. The Manager Distribution Operations (male, under 40) confirmed the supervisor’s explanation that Complainant’s restrictions prevented her from working on holidays. The Manager stated overtime and holidays are done by Tour, then Section and by employee’s ability to perform the job per their bid assignments. In summary, as detailed above, the responsible Agency official articulated legitimate, nondiscriminatory reasons for the disputed actions, which Complainant failed to prove, by a preponderance of the evidence, were a pretext designed to mask sex, disability, and age discrimination and retaliation for her prior EEO activity. 2020004355 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 3 On appeal, Complainant does not challenge the December 3, 2019 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of sex, disability, age and prior protected activity when on May 27, 2019, she was not afforded the opportunity to work the Memorial Day holiday). Therefore, we have not addressed this issue in our decision. 2020004355 5 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 September 29, 2020 Date