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

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021005021 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelle P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021005021 Agency No. 4G-780-0114-16 Hearing No. 451-2017-00113X DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 2, 2021 final order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Secretary, PS-07, at the Agency’s Austin Plant in Austin, Texas. On July 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (Vietnam), sex (female), color (yellow), and reprisal (prior protected EEO activity) when: (1) on March 10, 2016, she was issued a notice of seven-day suspension; (2) on April 19, 2016, she was issued a 14-day suspension; (3) on April 28, 2016, she was placed on Emergency Off-Duty Status; (4) on various dates beginning in July 2016, she was subjected to a hostile work environment to include but not limited to sarcastic remarks, false statements made by a coworker and management failed to respond; (5) on or around October 11, 2016, her request for annual leave was denied; (6) on or around October 13, 2016, she was subjected to a Pre-Disciplinary Interview (PDI); (7) on or around December 12, 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. 2021005021 2 2016, she was placed on Emergency Placement in an off duty, non-pay status; (8) on or around January 25, 2017, she was subjected to a Pre-Disciplinary Interview; and (9) Complainant was issued a Notice of Removal dated February 14, 2017, for Unacceptable Conduct. After its investigation into the complaint, 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. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Namely, as to claim (1), Complainant’s supervisor (S1) testified that she issued Complainant a seven-day suspension for Unacceptable Conduct after Complainant failed to follow instructions, acted in a hostile manner, and ignored direct orders. Regarding claim (2), the Postmaster issued Complainant the 14-day suspension based on Complainant’s "failure to discharge properly the duties of the position” when he served as Complainant’s acting supervisor for one week. The Pflugerville Postmaster explained that he required Complainant’s assistance in setting up a teleconference with 80 offices. Complainant failed to respond to his requests for assistance and he had to drive 20 miles to Complainant's office, at which point she informed him that he was “to leave a message.” The Postmaster regarded Complainant’s response to his request for assistance to be insubordinate and stated that he considered Complainant's prior disciplinary history in deciding to issue the 14-day suspension. With respect to claim (3), the Tyler Postmaster testified that Complainant was placed on Emergency Off Duty Status on April 28, 2016, after Complainant displayed the potential to be a danger to herself, and others, during a workplace violence interview. The record indicated that the Postmaster issued the Emergency Procedure to Complainant and that Complainant refused to sign the document. As to claim (4), Complainant alleged that her co-worker expressed resentment toward her after Complainant accepted the Secretary position in June 2015 and made false statements about her. Complainant did not provide specific information about the remarks allegedly made. Nonetheless, S1 stated that she looked into Complainant’s allegations against her co-workers and that there were “findings” against Complainant rather than her co-workers. Regarding claim (5), S1 recalled denying one of Complainant's leave requests; although, she was uncertain which one it was. S1 stated that the reason for the denial was because Complainant submitted her leave request just prior to the dates requested and there was no one to relieve Complainant during her requested absence. With respect to claim (6), the Taylor Officer in Charge conducted a PDI with Complainant based on Complainant's failure to follow instructions. As to claims (7) - (9), S1 decided to place Complainant on an Emergency Placement off-duty, non-pay status on December 12, 2016, after Complainant admitted to discarding files that the Manager's Office was required to retain; including Postmaster training files, contract files, how- to files, Standard Operating Procedure files, distribution files, P.O. Box audit files, purchase card statements, Postmaster credit card authorizations, phone books, all guides and other records and 2021005021 3 files. S1 affirmed that Complainant was found to be a threat to the remaining office records. Management conducted a PDI with Complainant and Complainant admitted she discarded numerous files that were required to be retained. S1 subsequently issued Complainant a Notice of Removal based on her destruction of Postal property and documents in violation of Agency rules and policies. The AJ concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting the AJ’s decision. 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 or retaliatory 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 Complainant’s favor. 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting 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: 2021005021 4 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). 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. 2021005021 5 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 March 23, 2022 Date