Elease S.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 25, 2020

2019002658 (E.E.O.C. Aug. 25, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elease S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2019002658 Agency No. 1B031001718 DECISION On February 6, 2019, 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 18, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 decision. ISSUE PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Eastern Maine Processing & Distribution Center (P&DC) in Hampden, Maine. On August 28, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (physical) when beginning on May 17, 2018, and continuing, her request for a detail as an Acting Supervisor (204-B) had not been granted. 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. 2019002658 2 Complainant explained that her medical condition was bilateral hearing loss, a condition that her physician expected to be lifelong. She asserted that she had not made her first-level supervisor, the Manager, Distribution Operations (S1), or any other management official aware of her condition; and that she had not provided medical documentation which identified her work-related restrictions. She also stated that she did not have work restrictions or limitations in her personal life as a result of this condition. Complainant alleged that her second-level supervisor, the Plant Manager (S2), and S1 did not grant her request to detail as an Acting Supervisor. She testified that she requested to serve in the detail position by submitting a handwritten “buck slip” in an envelope in the mailbox for S2. Complainant asserted that she was encouraged by supervisors to submit her detail request; and that she also wanted the experience to serve as an Acting Supervisor. Complainant stated that she never received a response to her request, nor was she given any information regarding its denial. Complainant asserted that no qualifications were required for the detail opportunity. She testified that she believed she should have been given the opportunity to interview for the detail position; and that she was not granted the detail because of her hearing impairment. Complainant indicated that she was told by management that the reason she was not granted the Acting Supervisor opportunity was because someone more qualified had applied for the position. She also indicated that she did not dispute not being given the detail because it was already granted to another person who, she asserted, was approached and offered the position she sought. She indicated that the Selectee had not shown any prior interest. Complainant alleged that S1 had asked her if she had hearing aids; and that he had told her that her hearing might be an issue for her as a 204-B. Complainant testified that she was able to perform essential duties of her position without an accommodation; and that she did not request any accommodation. She stated her belief that the Americans with Disabilities Act of 1990 was violated when she was not granted the opportunity. Complainant identified two comparators who, she indicated, received more favorable treatment. C1 is an Expediter who is deaf. Complainant asserted that he was provided an accommodation in the form of a video phone and flashing light. She stated that C1 was provided the necessary tools to perform his duties; and that she was given zero options. Complainant also identified C2, the Selectee for the Acting Supervisor detail opportunity. C2 did not have a medical condition. Management affirmed that Complainant had no work restrictions as a result of her stated medical condition of which they were unaware; and that she never asked for an accommodation nor did she need one to do her job. They explained that C1 had requested accommodations; and that C2 had requested the detail opportunity earlier than Complainant. S2 affirmed receipt of Complainant’s request to be considered for the detail opportunity. He explained that he selected C2 from a listing of 11 employees who had expressed a detail interest; and that he made the final selection decision although three managers, including S1 were consulted. S2 asserted that he sought input from the managers as to availability, skill, experience 2019002658 3 and work ethic of the employees listed who expressed an interest; and that he inquired about who else might be interested in the detail opportunity. S2 asserted that he made the decision to select C2 because C2 had the easier operational availability and good work performance. C2 had also submitted a request some 45 days earlier than Complainant. S2 explained that any employees who were interested in detail opportunities were encouraged to submit their request in writing. He indicated that Complainant had submitted two written requests asking for future detail opportunities that did not specifically request the Acting Supervisor opportunity at issue. S2 asserted that S1 gave a verbal response to Complainant regarding the reason for the denial of her detail request. S1 also explained that there was no written policy or procedure that was used in the granting of detail opportunities. He indicated that employees who expressed an interest in those opportunities were encouraged to submit their request in writing and provide a copy of their career profile to the Plant Manager. S2 indicated that the qualifications and criteria used in selecting the Acting Supervisor were good work performance including safety and attendance. He testified that Complainant met the requirements for the detail opportunity; however, when she was not selected, he did not provide her with a reason for the non-selection. He denied awareness of any conversation between Complainant and S1 in which S1 allegedly asked Complainant if she had hearing aids and then told her that her hearing loss might be an issue for her as a 204-B. S2 testified that Complainant's hearing loss did not influence his decision, asserting that he was not aware at the time that she had any medical issue. S1 provided supporting testimony, asserting that Complainant misheard his conversation with her about hearing aids. He stated that he was trying to let Complainant know that her hearing loss would not be an issue because he was excited about her becoming a 204-B when she made her interest known to him. 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Letter, Complainant outlined a few discrepancies in the FAD. These include that she had been specific in her request for the detail opportunity at issue in her complaint; that she had submitted her request to S2 only; and that S1 had no conversation with her regarding the reason for her non-selection. Complainant also admits that she does mishear people but denies mishearing S1’s question about her need for hearing aids; and she asserts that there were previous times when Mail Handlers were chosen for the position at issue with disregard to operational availability. 2019002658 4 STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability; we find that the Agency articulated legitimate, nondiscriminatory reasons for her non- selection to the Acting Supervisor detail opportunity for which she applied. S2 explained that he decided to select C2 because C2 had the easier operational availability and good work performance. He asserted that Complainant was also qualified and met the criteria for the detail. However, C2 had expressed interest in the opportunity some 45 days before Complainant made her interest known. Complainant contended that there were previous times when Mail Handlers were chosen for the position at issue with disregard to operational availability. She however failed to refute S2’s explanations that C2 had requested the detail opportunity over a month before she did or that he had easier operational availability. Moreover, S2 did apply the same process when considering Complainant’s request that he did with all 11 employees who had expressed interest in the detail opportunity. Complainant may have disagreed with S2’s decision but she has failed to present any persuasive evidence that discrimination occurred; and we are unable to substitute our own judgment for that of S2 who knew that based on easier availability, C2 was a better candidate than Complainant for the detail opportunity. 2019002658 5 The Commission has held it "will not substitute its judgment for that of selecting officials familiar with the present and future needs of their facility and who are in a better position to judge the respective merits of each candidate, unless probative facts suggest that proscribed considerations entered into the decision-making process." Johnson-Harmon v. Dep't of Veterans Affairs, EEOC Appeal No. 0120081497 (Aug. 27, 2009); Complainant v. Corp. for Nat'l & Cmty. Serv., EEOC Appeal No. 01201413823 (May 13, 2016) (“a trier of fact should not substitute his judgment for a legitimate exercise of managerial discretion”). In an effort to show pretext, Complainant stated her belief that her medical condition was a factor of consideration in management's actions when she was not granted the Acting Supervisor detail because S1 had told her that her hearing might be an issue with being a 204-B. She asserted that S1 had asked her if she would need hearing aids to perform in the position. S1 denied Complainant’s allegation, asserting that Complainant misheard him. Complainant contended that she did not mishear S1 but admitted that she sometimes misheard people. As the burden of proving discriminatory animus rests with Complainant, and Complainant presents no corroborating evidence that the comment was made, we find that Complainant’s disability did not factor into her nonselection. S2 made the ultimate determination, and he asserted that Complainant’s disability was not a considered factor in his selection decision, that he was unaware of the alleged comments made by S1, and that he was even unaware that Complainant had any medical condition at all. Complainant failed to refute management’s statements; and she had indeed stated that there was no documentation of her medical condition. Therefore, Complainant has failed to create an inference that her non-selection was motivated by discriminatory animus based on her disability. See Lawson v. CSX Transportation, Inc., 245 F.3d 916 (7th Cir. 2001) (stating that in order to establish a prima facie case, a complainant must demonstrate that he or she: (1) is an "individual with a disability"; (2) is "qualified" for the position held or desired; (3) was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination). Complainant also identified two comparators who she asserted received more favorable treatment. However, C1 is an improper comparator because he had a known disability and received accommodations for that reason. C2 is also an improper comparator because he had a lead over Complainant when he requested the detail opportunity weeks before she did. Since Complainant is unable to identify similarly situated comparators who received more favorable treatment, her discrimination allegations fail. See Aguilar v. U.S. Postal Service, EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2019002658 6 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. 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. 2019002658 7 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 August 25, 2020 Date