[Redacted], Vickey S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2021

Appeal No. 2020001768 (E.E.O.C. Mar. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vickey S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020001768 Hearing No. 510-2017-00149X Agency No. 4G-335-0134-16 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 19, 2019, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the time at issue in her complaint, Complainant was a Lead Sales & Service Associate for the Madeira Beach Station (Madeira Beach), located in Madeira Beach, Florida, but she was working out of the Bay Pines Post Office (Bay Pines). Complainant alleged that she was discriminated against based on age (over 40), disability (chronic Hep C, porphyria cutanea tarda, ulcers, and diverticulitis), and in retaliation for engaging in prior EEO activity when: (1) on April 29, 2016, she was informed that she would be training the new Postmaster; and (2) on May 9, 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. 2020001768 2 2016, her bid was abolished and she was reassigned to the Midtown Station.2 The Manager, Customer Service at Madeira Beach was A1. A2 was the Acting Manager, Post Office Operations over various offices, including Madeira Beach and Bay Pines. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. After a motion by the Agency, which was opposed by Complainant, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued a final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. According to Complainant, A2 made the decision that she would have to train S1, the new in- coming Acting Postmaster at Bay Pines. Complainant did not agree with this decision because Bay Pines had not had a Postmaster since October 31, 2008 and had no carriers or rural delivery. There was only one part time flexible employee to manage. Complainant felt that she should not have been replaced or required to train S1 because she performed the duties of the job in an “exemplary” fashion, increased retail revenue by 300%, marketed, and served Veterans. She maintained that she was very capable of performing the position duties, based on her work at the station for the past three years; however, she is not eligible to apply for an EAS-18 position, whose duties include managing delivery and collection, but she could do the job. Complainant felt her age was a factor because management knew she was eligible to retire. She felt that her disability was a factor because it was exacerbated by stress and conflict. Finally, she stated that management violated its performance plans, the Employee and Labor Relations Manual, the Collective Bargaining Agreement and the Local Memorandum. Although she filed a grievance, Complainant stated that it was denied at Step 2. A2 stated that she did not inform Complainant that she would be training S1 but only told her to work with S1. According to A2, Complainant was not required to train S1 because S1 did not need to be trained. She noted that S1 had previously worked as the Officer-in-Charge (OIC) at Bay Pines.3 A2 emphasized that Complainant was never the OIC or Postmaster, therefore, she would not be able to train S1. Because Complainant was not a manager, the administrative functions of Bay Pines, like time keeping and scheduling, were handled by other branches. Regarding claim 2, Complainant stated that A2 abolished her bid and reassigned her to the Midtown station. She stated that she was notified by a letter dated May 9, 2016, that her current assignment was being abolished on May 13, 2016; it also indicated that her new assignment would be as a Sales and Service Associate at the Midtown Station, effective May 14, 2016. 2 Her reprisal claim only applied to claim 2. 3 According to Complainant, S1 served as OIC of the Bay Pines Post Office from May 4, 2005 to August 2, 2005, then again from December 12, 2005 to December 22, 2015. 2020001768 3 Although the letter indicated that the abolishment was due to a change in the operational requirements, Complainant felt that it was an attempt to force her to retire by moving her to a less desirable assignment, i.e., location, duties, hours, and commute. A2 stated that she explained to Complainant that S1 would be reporting to Bay Pines, as the position was vacant; and that she would be returning to her assigned duty office. She noted that Bay Pines did not have staffing for two clerks; and that the staffing warranted one Postmaster and one Part-Time Flexible clerk. A1, who signed the May 9, 2016, letter, stated that the reason for Complainant’s position abolishment was due to changes in operational requirements. He was informed, on April 29, 2016, S1 was being detailed as the Postmaster at Bay Pines. A1 indicated that with the OIC position at Bay Pines being filled, and there being a full-time supervisor at Madeira Beach, there was no longer a need for a Lead Services Sales Associate position at either location. A1 further noted that both Bay Pines and Madeira Beach did not have enough clerks to justify a Lead Service Sales Associate position. The AJ found that: It is not in dispute that the Complainant was asked to train/work with the new acting Postmaster by [A2]. There is no dispute that on April 29, 2016, when the Complainant alleges this occurred, the Complainant had not engaged in prior EEO activity. Further, [A2] was not made aware of the current EEO complaint until June 21, 2016; after both alleged events occurred. The Complainant has not identified how she was subjected to an adverse employment action based on age or disability when she was asked to train the Postmaster. She has not alleged any harm to a term, condition or privilege of her employment. Furthermore, she has not identified any similarly situated individual who was treated more favorably or any inference of a nexus between her age and disability and this request for the Complainant to train the Postmaster. The Complainant makes a number of conclusory statements about this action being discriminatory and an effort to get her to retire but never articulates anything based on the undisputed facts of record that would establish the Agency's explanation was pretextual. She presents only speculation and conjecture. The Complainant further presents nothing to establish that the Agency's explanation regarding her bid abolishment and reassignment was pretextual.4 4 The AJ noted Complainant’s contention that she was treated differently than C1, the Part-Time Flexible Clerk at Bay Pines, whose position was not abolished. C1, the AJ noted was not a Lead Services Sales Associate, was older than Complainant and had prior EEO activity. Therefore, the AJ found C1 was not similarly situated to Complainant. 2020001768 4 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). 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 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. We find that even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.5 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, 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 finding no discrimination. 5 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2020001768 5 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). 2020001768 6 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 March 9, 2021 Date