[Redacted], Eleni M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Nov 10, 2022

Appeal No. 2021004938 (E.E.O.C. Nov. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eleni M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021004938 Hearing No. 480-2021-00116X Agency No. 4F-913-0031-20 DECISION 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 August 11, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor Customer Services at the Agency’s Visalia Town Center Station in Visalia, California. On April 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic),2 and sex (female), 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. 2 The Commission notes that Complainant alleged discrimination on the basis of race and indicated her race was “Hispanic,” but the term “Hispanic” typically denotes national origin 2021004938 2 1. on January 18, 2019, the Postmaster ridiculed Complainant when she reported that stamp stock was missing from the floor; 2. on July 17, 2019, Complainant was told that she would be responsible for the $10,000 worth of missing stamp stock; 3. on July 18, 2019, the Postmaster denied Complainant a detail to Pacific Area Operations Support; 4. on or about July 31, 2019, Complainant was harassed about her work hours and not provided assistance that was necessary to leave the office for breaks and lunches; 5. on August 13, 2019, Complainant was issued a Letter of Indebtedness; 6. in August 2019, the Officer in Charge (OIC) denied Complainant a promotion to Manager, Downtown Station (Bakersfield); 7. in August 2019, the Officer in Charge (OIC) denied Complainant a promotion to Manager, Downtown Station (Bakersfield);3 8. from September 14, 2019, through January 31, 2020, the Manager Post Office Operations (MPOO) denied Complainant detail assignments to Officer in Charge positions in: a. Lover’s Lane; b. Pixley; c. Strathmore; d. Laton; e. Corcoran; and f. Exeter; 9. on September 13, 2019, Complainant was issued a Proposed Letter of Warning, in lieu of a 14-day suspension, which was upheld in a Letter of Decision on March 26, 2020; rather than race. However, herein the Commission acknowledges Complainant’s self- identification of her race as Hispanic. 3 We note that claim 7 is a duplicate of claim 6, but in the interest of maintaining consistency with the numbering of the claims in Complainant’s appeal, they are listed in the same manner as originally presented by the Agency. 2021004938 3 10. on September 13, 2019, OIC attempted to harass and intimidate Complainant when he notified Complainant’s new manager of the proposed discipline and copied the new manager on emails regarding the alleged debt; 11. on November 5, 2019, Complainant’s request for Reconsideration of a Debt was denied; 12. on December 19, 2019, MPOO denied Complainant a promotion to Postmaster at Corcoran; 13. on December 27, 2019, the Agency began involuntary deductions from Complainant’s pay related to the Letter of Debt Determination; 14. on January 10, 2020, and other dates, an Acting Human Resources Manager (AHRM) attempted to intimidate Complainant by refusing to speak to her representative and instructing the representative to not contact her again; 15. on January 13, 2020, AHRM refused to do a pay adjustment after she suspended the involuntary pay deductions from Complainant’s pay; 16. on January 30, 2020, MPOO denied Complainant a promotion to the position of Postmaster at Exeter; and 17. on March 12, 2020, MPOO denied Complainant a promotion to the position of Postmaster at Laton; Complainant also alleged retaliatory harassment when: 18. on May 15, 2020, Complainant was notified that she was not selected for the position of Postmaster at Friant; and 19. on June 1, 2020, Complainant learned that she was not selected for the position of Manager at the Bakersfield Downtown Post Office. The Agency dismissed claims 1-7 because they were identical to claims in a previous complaint (Agency case number 4F-913-0128-19), which Complainant withdrew on October 9, 2019. The Agency also dismissed claims 5, 11, 13, and 15, for failure to state a claim. The Agency noted that the Debt Collection Act mandates that monetary disputes must be resolved through the provisions of the act, and that challenges to an agency’s actions under the Debt Collection Act are not within the Commission’s jurisdiction. Report of Investigation (ROI) at 57-8. The Agency accepted the remaining claims for investigation. After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an EEOC Administrative Judge (AJ). 2021004938 4 Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ noted that Complainant filed a motion to reinstate the dismissed claims and the AJ denied the motion. For the detail assignments in claim 8, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for each location. For example, Complainant was not selected for the Lover’s Lane position because she did not have the experience to run an operation of that size. In addition, the selectee was already in the position at the time Complainant submitted her request. The record also reflected that MPOO never received a request from Complainant for details to Strathmore, Laton, or Corcoran, but even assuming that Complainant sent the requests, no one was selected for Laton during the relevant time period; the Corcoran position was filled prior to MPOO’s assumption of duties as manager; and the Strathmore assignment was given to another employee as a developmental opportunity because she may not be able to get an opportunity otherwise. The record also showed that, while Complainant was not placed into any of the listed locations, MPOO offered Complainant an Officer in Charge assignment at Coalinga, which Complainant accepted. The AJ then found that Complainant did not show that the reasons were pretexts for discrimination. The AJ noted that Complainant argued that she was discriminated against when she was found liable for, and personally held responsible for, the missing stamps, but that she failed to prove a nexus between the missing stamps and the decisions regarding the detail positions. For the Letter of Warning (claim 9), an investigation by the Office of the Inspector General revealed that Complainant mishandled the transfer of 200 coils of stamps, and she did not answer the investigative interview questions candidly. While Complainant alleged that two White females were not similarly disciplined, the AJ determined that they were not proper comparators because they were not similarly situated with regards to their charged conduct; their job duties at the time of the loss; or their supervisory chain. Complainant also argued pretext for discrimination because she was not properly trained to receive stock and should not have been disciplined. However, the AJ noted that the question was not whether the Agency’s actions were fair or right, but whether the real reason was discrimination, and a review of the record showed that Complainant was unable to prove pretext for discrimination. Regarding the denials of the five promotions (claims 12, 16, 17, 18, and 19), Complainant asserted that she was a “highly desirable employee,” and she was the “obvious choice” for the positions. The AJ found that Complainant failed to demonstrate a nexus between any of her bases and the non-selections at issue, or that she was the plainly superior candidate. While Complainant once again attempted to tie her non-selections to her belief that she was wrongly held liable for the missing stamps, there was no requisite nexus to her sex, race, or prior protected EEO activity. 2021004938 5 The AJ then identified the legitimate, nondiscriminatory reasons for each selection; for example, the Corcoran selectee had demonstrated past successful performance as the Officer in Charge at Corcoran and the Exeter selectee was a lateral transfer who was already at the Postmaster level. The AJ determined that Complainant did not establish that she was plainly superior to any of the selectees, nor point to evidence to refute the Agency’s stated reasons. For the harassment claim, the AJ found that there was no discriminatory bias or intent when OIC informed MPOO that Complainant was subject to discipline (incident 10), or for AHRM’s actions (incident 14). Even crediting Complainant’s version of events, the AJ determined that Complainant did not establish that they occurred due to her race, sex, or protected EEO activity; but rather, they were normal workplace instructions, conflicts, activities and tensions. Further, Complainant was unable to demonstrate that the incidents had the purpose or effect of unreasonably interfering with her work environment and/or creating an intimidating, hostile or offensive work environments. The AJ concluded by entering judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of her appeal. The Agency opposed Complainant’s appeal. 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). In order 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 she 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 has failed to establish such a dispute. Through her representative, Complainant disputes the dismissal of claims 1, 2, 5, 11, 13, and 15. Complainant also argues that the claims in her complaint were not properly presented, and that she had two claims: (1) Complainant was subjected to disparate treatment when the Postmaster held Complainant personally financially accountable for a floor shortage, but she did not hold other White employees personally financially accountable for their floor shortages; and (2) the 2021004938 6 Agency retaliated against Complainant for filing an EEO complaint on September 19, 2019, by creating a hostile work environment. Regarding the dismissal of claims 1, 2, and 5, Complainant asserts that she withdrew the claims in good faith after the Agency promised that the debt was abandoned and moot. After Complainant withdrew her claims, the Agency resurrected the debt in violation of the Agency’s policies. However, Complainant presented no evidence to support that any Agency official made reliable assurances regarding her debt. For the sake of argument, even crediting Complainant’s contentions, we find that Complainant did not establish that she was treated less favorably than two White comparators. While Complainant asserts that her comparators were not held accountable for shortages, we find that Complainant has not shown that they were similarly situated. Among other things, to be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). Complainant focuses on the fact that her comparators were not held responsible for shortages, but the record contains evidence showing that there were additional considerations regarding Complainant’s shortage. Am Agency Chief Administrative Law Judge denied Complainant’s petition regarding her personal financial liability. The decision noted that Complainant directed the lead retail clerk to try to accept that there were 200 coils of stamps to avoid her accountability of the shortage. The lead clerk properly refused to do so, which was sufficient to invalidate any transfer for the purposes of avoiding financial liability. The Chief Administrative Law Judge noted that an employee cannot escape personal financial liability by manipulating the existing system to hide an actual shortage, and he concluded that Complainant was directly responsible for the loss and that the Agency was entitled to collect $10,000.00 from Complainant. Agency Reply to Complainant’s Response to Pre-discovery Motion for Summary Judgment, Exhibit 1. Complainant provided no evidence proving that her comparators acted similarly in directing another employee to manipulate the system in an attempt to avoid personal financial liability. As such, we find that Complainant did not prove that similarly situated White comparators were treated more favorably regarding any repayment for shortages. Complainant also argues that the similarly situated individuals were not issued any discipline. However, a review of the proposal and decision for the Letter of Warning shows that the Agency included a charge of lack of candor, in addition to the improper handling of the stamps. The proposal noted that Complainant participated in an investigative interview regarding the missing stamps, and she provided unacceptable and inconsistent responses. The Letter of Warning decision sustained the charges and explained that Complainant’s lack of candor harmed the Agency’s ability to trust her as an employee; Complainant misrepresented facts in the investigative interview; and Complainant accepted no accountability for her actions and had attempted to cover up the missing coils. ROI at 614-20, 626-8. 2021004938 7 Again, Complainant provided no evidence to show that her comparators were similarly found to have lacked candor regarding their shortages. For claims 11, 13, and 15, we find that these claims were properly dismissed for failure to state a claim. As noted by the Agency in its partial dismissal, challenges to an agency’s actions under the Debt Collection Act are not within the scope of the Commission’s jurisdiction. See Melvin S. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022001911 (Aug. 9, 2022); Baughman v. Dep’t of the Army, EEOC Appeal No. 01900865 (Feb. 26, 1990). Complainant also argues that the Agency retaliated against her for filing an EEO complaint on September 19, 2019, by creating a hostile work environment. For example, when the Agency violated policy when it sent the Debt Determination letter to Complainant via first class mail, as opposed to hand delivery; failed to timely respond to her Request for Reconsideration of Debt; and issued Complainant a “14-day suspension.”4 To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). Here, Complainant argues that the Agency’s actions have a chilling effect on EEO activity, but Complainant provided no evidence to connect any of the Agency’s actions to her protected EEO activity, and she only offers speculation and bare assertions that the Agency’s actions demonstrated retaliatory animus. Accordingly, we find that Complainant did not establish that the Agency subjected her to retaliatory harassment. We note that Complainant did not challenge the dismissals or decisions for the remaining claims, and the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110 at Chap. 9, § IV.A.3. As such, we will not address the unopposed claims in the instant decision. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 4 While Complainant states that the Agency issued a suspension, the record is clear that the Agency issued a Letter of Warning in lieu of a suspension. 2021004938 8 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. 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). 2021004938 9 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 November 10, 2022 Date