[Redacted], Angelica P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2021000126 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angelica P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000126 Hearing No. 530-2019-00246X Agency Nos. 4C-170-0053-162 and 4C-170-0012-18 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 25, 2020, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. During the relevant time, Complainant was employed by the Agency as a Rural Carrier Associate in York, Pennsylvania. On March 12, 2018, Complainant filed an EEO complaint alleging discrimination and harassment by the Agency on the bases of race (African-American), sex (female, sexual orientation), color (Black), disability (physical and mental), age (41), and reprisal for prior protected EEO activity when: 1. On March 31, 2017, October 10, 2017, and December 2, 2017, she was issued Notice of Removals; 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. 2 The AJ dismissed Agency No. 4C-170-0053-16, due to the execution of a settlement agreement. Complainant does not raise the dismissal on appeal. 2021000126 2 2. She was given pre-disciplinary interviews; 3. Her Supervisor called her on her route; 4. She was not provided a postal vehicle; 5. Her Supervisor yelled at her and clapped his hands in her face; 6. She was sent home; 7. She was questioned by management whenever she stepped off the workroom floor; and 8. She did not receive the same amount of training as her co-workers. Following an investigation, 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. On July 30, 2020, the AJ notified the parties sua sponte of an intent to issue a decision without a hearing. In her intent to issue a decision without a hearing, the AJ noted that the March 31, 2017, removal was issued because Complainant was in an at-fault accident with an Agency Long-Life Vehicle (LLV). Additionally, observed the AJ, Complainant was issued the October 10, 2017, Notice of Removal for the failure to meet route evaluation times and she was issued the December 2, 2017, Removal Notice due to her failure to report an accident, her lunches, and breaks. In addressing claim 2, the AJ stated that Complainant was given a pre-disciplinary interview for failing to follow her supervisor’s instruction that she carry half of route 38 for training. The AJ noted that Complainant was issued another pre-disciplinary interview after she had a vehicle accident with an Agency LLV. Regarding claim 3, the AJ found that management was simply following standard procedure by calling Complainant while on her route, as she was unable to complete her assignments on time and routinely needed assistance. The AJ further noted, as to claim 4, that all Carriers are required to have a personal vehicle to deliver mail. LLVs are only provided based on availability and in emergency situations. With respect to claim 5, the AJ noted that a coworker attested that Complainant raised her voice and argued with the first-level supervisor (S1) and that S1 never in fact yelled at Complainant as alleged. The AJ observed that management then sent Complainant home and her colleagues had to finish Complainant’s uncompleted tasks. The AJ determined that there was no corroborating evidence to support Complainant’s allegations surrounding claim 6.3 3 We note that the Office Manager attested that the decision was made to place Complainant on administrative leave due to Complainant’s June 14, 2017, resignation letter. Report of Investigation, at 561. 2021000126 3 Regarding claim 7, the AJ found that management had to address Complainant’s performance issues, which included not completing her assignments or recording her breaks. The AJ noted, for example, that management was informed by three employees that Complainant was seen carrying a box of donuts and a case of soda to her car without recording her break. As for claim 8, the AJ found no evidence to support Complainant’s claim that she was denied training given to her coworkers. In so finding, the AJ noted that Complainant received training on different routes on several occasions. The AJ determined that Complainant did not establish that the Agency’s legitimate, nondiscriminatory reasons were pretextual based on her protected classes or that the Agency was motivated by discriminatory or retaliatory animus. Further, the AJ found that Complainant’s allegations amounted to common workplace occurrences, which did not rise to the level of a hostile work environment. Thereafter, on August 21, 2020, the AJ issued a decision by summary judgment in favor of the Agency. On August 25, 2020, the Agency issued a final order adopting the AJ’s decision that Complainant failed to prove she was discriminated against as alleged. The instant appeal followed. 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. 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. Upon careful review of the AJ’s decision, the evidence of record, and 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021000126 4 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). 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). 2021000126 5 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 November 8, 2021 Date