[Redacted], Kendra W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 14, 2022

Appeal No. 2022003264 (E.E.O.C. Sep. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendra W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003264 Hearing No. 520-2021-00463X Agency No. 1B-061-0004-21 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 20, 2022, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Maintenance Operations, at the Agency’s Southern Connecticut Processing and Distribution Center (P&DC) in Wallingford, Connecticut. On January 5, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (African-American) and color (black) when, as defined by the Agency: 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. 2022003264 2 1. On a date to be specified, Complainant was not chosen for a Tour 1 Supervisor, Distribution Operations, EAS-17 (SDO-17) detail position; 2. From November 28, 2020, and ongoing, Complainant was not allowed to work on her nonscheduled days at the Cross-Dock and other areas at the Southern Connecticut P&DC; 3. On or about November 14, 2020, a Tour 1 Manager, Distribution Operations, EAS-19 (MDO-19) detail position posting was canceled, and someone was placed into the position without allowing Complainant to apply for the posting; and 4. On or about December 22, 2020, a new supervisor job was created without being posted for Complainant to apply. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ concluded that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complainant, she failed to create a genuine issue of material fact to establish discrimination based on race or color. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual. Regarding claim 1, the Agency chose the selectee for the SDO-17 detail over Complainant and about nine other candidates because the selectee had already been working in the same position for the prior two months. The selectee had also completed a higher-level detail at the same facility in 2019. As to why Complainant was not selected, Complainant’s supervisory experience was in maintenance, as opposed to mail processing operations or transportation. Supervisory experience in those fields was the most important factor the selecting official, Plant Manager (PM), considered in filling the detail at issue. Regarding claim 2, Cross-Dock refers to extra work done during the holiday season that runs 24 hours a day and includes parcel sorting and truck dispatch. During the period at issue, the Cross- Dock operations ran from November 29, 2020, until December 24, 2020, at both the Southern Connecticut P&DC and an Agency facility in Norwich, Connecticut. This was the first year that there were Cross-Dock operations at the Norwich facility. PM stated that she did not allow Complainant to work on her nonscheduled days (i.e., scheduled days off) at the Southern Connecticut P&DC Cross-Dock operation because such an operation was distribution-based, and there was no need to have a maintenance supervisor present. In addition, PM averred that the Southern Connecticut P&DC Cross-Dock operation was reduced by half in 2020 because of the expansion to the Norwich facility, and therefore the Agency had no need to have all supervisory employees work at the Cross-Dock operation as was required in previous years. 2022003264 3 The employees Complainant identified as being treated more favorably by being allowed to work at Cross-Dock operations had transportation expertise that Complainant did not have, had experience running the Cross-Dock operation for several years, or had accepted relevant detail assignments to which Complainant did not apply. Regarding claim 3, the Southern Connecticut P&DC’s then-current Manager, Distribution Operations (MDO) informed PM that she was going on long-term leave. PM’s supervisor, Senior Plant Manager (SPM), told her to post a detail to cover the position while the MDO was on leave. Around the same time, PM had asked a Supervisor, Distribution Operations (SDO) to cover for the MDO in her absence. This SDO had filled in as an MDO at the same facility earlier that year and thus required no training to be placed in the detail at issue. Because the SDO did not give PM an immediate response, the Agency’s Human Resources department posted the MDO-19 detail opportunity, after which SDO agreed to fill in as the MDO. The detail posting was subsequently cancelled. Two applicants had applied for the detail by the time it was cancelled, but Complainant had not applied to the position. Regarding claim 4, the AJ found that management had not created a new supervisor position but had brought in an additional supervisor to the facility for support during the MDO’s absence. PM spoke to SPM about having a supervisor from the New Haven Post Office work on a detail for several months at the Southern Connecticut P&DC while the facility’s MDO was on long- term leave. PM averred that this arrangement was also part of an agreement between the New Haven supervisor’s union representative and Agency management unrelated to Complainant. The AJ found that the Agency in no way singled out Complainant in granting the New Haven supervisor a temporary reassignment to the Southern Connecticut P&DC. 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. 2022003264 4 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 factfinder could not find in her favor. On appeal, Complainant states that she requested information from the Agency that she never received and that such information “would show facts to support [her] complaint.” However, Complainant does not specify what information she requested or describe how any additional testimony or documentary evidence would create a genuine issue of material fact. After review, we find that the record is sufficiently developed and that the AJ did not err in issuing a decision without a hearing. 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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). 2022003264 5 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). 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. 2022003264 6 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 14, 2022 Date