Shondra S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 10, 2020

2020000003 (E.E.O.C. Sep. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shondra S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000003 Agency No. 1G-351-0015-18 DECISION On September 6, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 8, 2019 final decision 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 period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Mobile, Alabama Processing and Distribution Center (“Mobile P&DC”). On April 17, 2018, Complainant filed the instant formal complaint. Complainant claimed that she was subjected to harassment/a hostile work environment based on race (African-American), sex (female), and in reprisal for protected EEO activity (current protected activity) when: a. on January 2, 2018 through February 6, 2018, she was bypassed for non-scheduled day (“NSD”) overtime; b. on February 13, 2018, she was questioned about light duty; 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. 2020000003 2 c. on March 16, 2018, her time card was locked up in the time card rack and she was unable to clock in just prior to her scheduled EEO mediation. After its investigation into the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ noted that in regard to claim a, Complainant claimed that she was bypassed for NSD overtime on her regularly scheduled off-days on January 10, 11, 17, 18, 24, 25, and 31, 2018, and February 1, 7, and 8, 2018. Complainant said she shared scheduled off-days (Wednesday and Thursday) with a named co-worker (African American female) who accrued 14.2 units of NSD overtime on Wednesdays and 15.98 units of NSD overtime on Thursdays. All of the identified dates occurred prior to Complainant’s protected EEO activity. The Supervisor Distribution Operations (“supervisor”) (Caucasian male) explained that, during the relevant period, Complainant did not have a bid job (was “unassigned”) and, therefore could not work NSD overtime under the collective bargaining agreement. Regarding claim b, Complainant alleged that on February 13, 2018, she was questioned about light duty. The supervisor stated he asked Complainant whether she was in a light duty assignment because her co-workers had reported to him that she was not performing the lifting tasks which are an essential function of the Mail Processing Clerk bid assignment, causing them to have to do all of the heavy lifting while Complainant did none. The supervisor explained that one of Complainant’s co-workers was not happy that Complainant claimed she was on light duty “forcing the other Flat Sorter clerks to have to do all of the heavy lifting while [Complainant] fed the machine and did no lifting. As it turned out she was not on light duty. He explained to Complainant that she needs to be in a full rotation with the rest of the Flat Sorters and “sweep the machine (required lifting) like everyone else unless she had a documented light duty case.” Moreover, the supervisor stated that Complainant did not disagree with him and asked for the necessary paperwork to file a light duty claim. Regarding claim c, Complainant alleged that on March 16, 2018, her time card was locked up in the time card rack and she was unable to clock in just prior to her scheduled EEO medication. The AJ found that during the relevant period, the door to the time card rack at issue was not locked, it was simply pushed shut and stuck. Complainant’s time card was in the time card rack used by all of the employees, and other employees had the same problem as Complainant with the malfunctioning time card rack. Complainant was paid for March 16, 2018. 2020000003 3 The Manager Distribution Operations (African-American female) acknowledged at that time, the time card rack “wasn’t [locked]. It was pushed up & hard to open.” She confirmed that management entered Complainant’s time for the day the time card rack was stuck. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant did not submit a brief on appeal. 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 has 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. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, the undisputed evidence of record fully supports the AJ’s conclusion that there is no support for a finding that Complainant’s race, sex or retaliatory animus played any role in the events at issue. With regard to her claim concerning overtime, the proffered comparator was of the same race and sex as Complainant and all the overtime at issue occurred prior to Complainant’s protected activity. As for the question regarding Complainant’s light duty status, there is no indication that Complainant was harmed by the question or that there was any discriminatory motivation. 2020000003 4 Finally, there is also no indication Complainant was harmed by the time card rack inadvertently being stuck and no evidence that any employee was treated more favorably regarding the time card rack. In sum, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subjected to unlawful retaliation by the Agency as alleged. CONCLUSION We AFFIRM the Agency’s final action adopting the AJ’s decision without a hearing, finding no discrimination.2 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. 2 On appeal, Complainant does not challenge the May 7, 2018 partial dismissal issued by the agency regarding one other claim. Therefore, we have not addressed this issue in our decision. 2020000003 5 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 10, 2020 Date