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

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2021002203 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leona B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002203 Agency No. 4C-170-0091-20 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 January 21, 2021 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales and Services/Distribution Associate, P-06, at the Agency’s Whitehall Post Office in Whitehall, Pennsylvania. 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. 2021002203 2 On July 21, 2020 (and subsequently amended), Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), disability (mental), age (50), genetic information2, and in reprisal for prior protected EEO activity when: 1. On May 15, 2020, she was issued a Letter of Separation; and 2. In early September 2020, she became aware that management had held one of her paychecks for four months before notifying her that she could come to the office to pick it up. Claim 1 - Separation Complainant entered duty as a Postal Support Employee (PSE) Sales and Services/Distribution Associate (SSDA) on March 28, 2020, subject to a probationary period. Complainant reported to the regular Postmaster for the Whitehall facility (S3), who went out on sick leave in April 2020. After S3 left, the Postmaster from the Emmaus Post Office took over. The Postmaster of the Emmaus Post Office (S1) stated he was the Officer in Charge at the Whitehall Post Office from about April 28, 2020 through July 31, 2020. He was the deciding official on the separation at issue. Upon entering duty, Complainant was sent to window training for a week to provide her the basic skills and knowledge to perform the duties of her position. Complainant was told by S1 that she was being scheduled to take the test to become an 814 Clerk (Windows). She did not pass the test. The Learning Diversity and Development Specialist averred she administered the Exam 421, which she said was required for the PSE SSDAs to retain their position. A PSE SSDA who fails the exam is deemed not qualified for the position and is separated. On May 15, 2020, S1 issued Complainant a Letter of Separation “effective immediately.” The Letter of Separation stated that Complainant’s “failure to pass the required window examination rendered [Complainant] ineligible for the position as a PSE SSDA.” Complainant identified three comparators whom she said failed the test, but the Agency permitted them to remain employed. The record shows those individuals were told they were “ineligible” and resigned or were terminated, and then reapplied and passed the test. 2 We note that Complainant claimed that when she met with the EEO Specialist, she described her disability as a “handicap placard.” When the EEO Specialist asked for more specificity, Complainant stated that she then “stuttered and said anything off the top of my head.” In her report, the EEO Specialist indicated the disability (Bi-polar disorder) and genetic information (HIV/AIDS) Complainant provided. Complainant later claimed she only provided an example of disabilities and she never intended the conditions she named to be included in her EEO paperwork. Complainant states that her actual medical condition is chronic, personal, and that she does not need to disclose it. 2021002203 3 Some of the comparators are of the same race, color and similar in age to Complainant. One was older than Complainant. After she failed the test, Complainant stated that she was told by a supervisor that he could not put her back on the schedule, because S1 said “they don’t need an 814 clerk (processing), only an 813 (window).” Complainant averred that she felt she was always being singled out. She said she did not have access to the computer and did not complete the training that was needed to complete the test. Because management averred she failed the test, she was deemed ineligible to continue her employment. She believed it was a “set-up,” because she believed she passed the test and because she “had an EEO case.” Claim 2 - Delay in Receipt of Checks Complainant claimed that she received three “outdated” checks in September 2020 that had been held four months without notifying her. S3 averred he did not notice the checks in the drawer for Complainant. When he did, he checked with the finance office to ensure they were valid. Once S3 learned they were valid, he informed Complainant that she could pick up the checks. The Agency attributed the delay to an oversight. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The instant appeal followed. In addition, Complainant appears to be raising new claims of discrimination for the first time on appeal.3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 3 To the extent that Complainant wishes to raise any new issues that occurred subsequent to the instant complaint, she should contact an EEO Counselor to raise those issues. 2021002203 4 Genetic Information Claim As an initial matter, we note that Complainant alleged discrimination based on genetic information in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq., which prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. § 1635.1. Genetic information means information about (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disease or disorder in family members of such individual (family medical history). 29 C.F.R. § 1635.3(c). During the investigation, Complainant did not specify what genetic information she believes was used to discriminate against her. Complainant only claimed that management was aware of her “health information.” In addition, as noted above, Complainant claimed that the EEO Specialist erroneously included medical information in the record that she never intended to include. There is no evidence that management was in possession or had any knowledge of any genetic information for anyone in Complainant’s family. The Commission finds that Complainant's complaint is devoid of any allegations or facts regarding genetic tests, the genetic tests of her family members, or her family medical history. In the absence of contradicting evidence, we find that to the extent that the Agency had any knowledge or awareness of Complainant's genetic information, Complainant has not met her burden of proof to show that such information played a role in any of the incidents at issue herein. Disparate Treatment A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination and reprisal. In this case, however, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant entered duty As a Postal Support Employee (PSE) Sales and Services/Distribution Associate (SSDA) Complainant was required to pass the test to become an 814 Clerk (Windows). She did not pass the test and was separated accordingly. Regarding the delay in payment of the checks, the delay was attributed to an oversight, which was corrected by management when the delay was discovered by S3. 2021002203 5 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Accordingly, we AFFIRM the Agency’s final decision. 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. 2021002203 6 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). 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. 2021002203 7 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 August 11, 2022 Date