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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022002639 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tricia B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002639 Hearing No. 420-2019-00152X Agency No. 4G-320-0123-18 DECISION On April 11, 2022, 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 March 16, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the relevant time, Complainant, initially, worked on detail as a Supervisor of Customer Service at the Agency’s Panama City Downtown Post Office in Panama City, Florida (Downtown). Manager Customer Service (Manager) was her first-level supervisor and Postmaster was her second-level supervisor while she worked at Downtown. Report of Investigation (ROI) at 143. She later accepted a detail as the Manager at the Northside Station (Northside). ROI at 146, 162. Postmaster became her first-level supervisor when she worked at Northside. ROI at 162. 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. 2022002639 2 On July 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American), sex (female), color (Black), age (52), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On March 30, 2018, Complainant became aware that her request to laterally transfer into a Supervisor Customer Service position at Downtown was denied, and that she would have to competitively compete for the position; 2. On or about April 15, 2018, Complainant was notified of her non-selection for the position of Supervisor of Customer Service at Downtown; and 3. Since May 14, 2018, on dates to be provided, Complainant's workload has increased, she has been monitored, and/or not provided with qualified staffing for the office. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency’s October 1, 2019, Motion for a Summary Judgment and issued a decision without a hearing on March 8, 2022. The AJ adopted the Agency’s Motion for Summary Judgment in its entirety. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, as to claim 1, Complainant alleges that she was granted a lateral transfer to Downtown, in the position she desired, by a prior postmaster who was no longer employed by the Agency at the time of the events in question. She says that when she told Manager that the prior postmaster had approved her lateral transfer. Manager asked for paperwork showing she was offered the lateral transfer into the Supervisor position by the prior postmaster. Complainant asserts that, because she did not have any such paperwork, she was required to compete for the position that she “already had been granted.” As such, she argues, evidence demonstrates that requiring her to compete for the position she had already been granted was discriminatory. Complainant also asserts, as to claim 2, that the individual selected for the Supervisor position, a white male, was less qualified than she. She specifically raises that she had more experience in the position. Complainant finally says that she should receive a hearing to call witnesses she claims will testify she was given more work as a manager, as she alleges in claim 3. 2022002639 3 Complainant also asserts that, if a hearing was held, she planned to call four witnesses in support of her claim of harassment. She acknowledges that these individuals were sent affidavits, but she argues that there is no evidence these witnesses received them. As such, she requests that the case should be remanded for a hearing. The Agency argues that the AJ’s decision was proper and should stand. 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. (Aug. 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. 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 the extent Complainant identified four individuals whom she planned to call at a hearing to testify to the “harassment they personally observed,” the Commission does not find this argument to be persuasive. As an initial matter, Complainant concedes that the Agency sent affidavits to each of the named individuals and none of these individuals responded. Complainant has provided no reason for the Commission to believe that she would be more successful in obtaining live testimony than the Agency. Finally, Complainant has not proffered, with specificity, what evidence any of these individuals would have provided. As such, the Commission finds that Complainant has not provided evidence that summary judgment was improper. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they 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. McDonnell 2022002639 4 Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of disparate treatment, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to claim 1, on March 20, 2018, Complainant requested a lateral transfer into the Supervisor of Customer Service position at Downtown. ROI at 109, 146. The request for a lateral transfer was denied and she was required to compete for the position. ROI at 109-10. Manager denied the request and instead indicated that she wanted to interview all of the applicants for the position. ROI at 146. Concerning claim 2, Manager chose the Selectee for the Supervisor of Customer Service position at Downtown based on the Selectee’s knowledge, skills, and abilities in the finance area, which Complainant did not demonstrate; and Selectee had better communication skills than Complainant. ROI at 152. Regarding claim 3, Postmaster said that he offered Complainant a detail as a Manager at Northside to help her gain experience to further her career, which she voluntarily accepted. ROI at 177. Postmaster denied increasing Complainant’s workload but indicated that, as an Acting Manager, Complainant was expected to do the same amount of work as all of the other managers. ROI at 177. Therefore, Postmaster averred that Complainant was merely taking on the additional responsibility and workload of a manager assigned to Northside. ROI at 178. Having found that the Agency provided legitimate, nondiscriminatory reasons for each of the claims, we now turn to Complainant to provide evidence that the Agency’s articulated reasons were merely pretext for discrimination. We find that she has not done so. Rather, she relies upon her own beliefs and opinions, which, no matter how genuine, are not evidence of pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). Regarding claim 1, Complainant indicated that she was confused by the situation. She averred without corroborating evidence that a prior postmaster offered to place her into the Supervisor position at Downtown. When she inquired about her position, she was told by Manager to apply for the position. The record indicated that the prior postmaster left the Agency. Furthermore, Complainant was told that the prior postmaster “created this mess” and never placed her in the supervisory position. ROI at 110. Instead, Manager was tasked with filling the Supervisor position and chose to competitive fill it. Upon review, we find that Complainant did not provide evidence to support her assertion that she was promised this position. Furthermore, Complainant has provided no evidence to establish that Manager’s decision to fill the position competitively was due to her protected bases. 2022002639 5 In a selection case as alleged in claim 2, a complainant can attempt to prove pretext by showing that his/her qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep't of the Treasury, EEOC Request No. 05950156 (May 9, 1996). Complainant argues that Selectee was less qualified than she, because she served as a Supervisor longer than he did. The Commission has consistently held that years of service, in and of itself, does not make one the most qualified candidate for a position and does not render one more qualified than those with less Agency experience. See Kenyatta S. v. Dep't of Homeland Sec., EEOC Appeal No. 0120161689 (Sept. 21, 2017). Upon review, Complainant has not shown that her qualifications were plainly superior to those of Selectee. The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Burdine, 450 U.S. at 259. The issue is not whether the Commission believes that the Agency made the best decision, but whether the decision was made based upon discriminatory animus. We find no such evidence here. Finally, with regard to claim 3, Complainant has not provided evidence beyond her own self- assessment that she was required to do more work than those in comparable positions. We do not find that Complainant has proven she was subjected to disparate treatment as alleged. To the extent Complainant argues that claims 1-3 constituted harassment, such a finding is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s 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. 2022002639 6 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). 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. 2022002639 7 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 29, 2023 Date