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

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022003782 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbie W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003782 Hearing No. 443-2021-00034X Agency No. 4J-530-0175-19 DECISION On June 24, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Carrier Technician at the Agency’s West Milwaukee Branch in Milwaukee, Wisconsin. On August 26, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were not successful. On December 3, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability (Post Traumatic Stress Disorder (PTSD)/shoulder) when: 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. 2022003782 2 1. She was not accommodated in accordance with her medical restrictions when she was sent home early; 2. She was sent to work at other stations, but her co-workers were not; and 3. On August 22, 2019, she was placed on Emergency Placement. After its 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 February 25, 2022, the Agency filed a motion for a decision without a hearing. Complainant did not reply to the motion. On May 12, 2022, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued the instant final order, implementing the AJ’s summary judgment decision. This appeal followed. 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 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, 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 factor of Complainant, a reasonable fact-finder could not find for Complainant. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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 2022003782 3 consideration was a factor in the adverse employment action. See McDonnell 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. The evidence developed during the investigation established that Complainant as a City Carrier Assistant, City Carrier and Carrier Technician. Carriers are required, inter alia, to carry a full route, sort and case mail, pull down the mail, and lift 70 pounds. As of July 2018, Complainant agreed to a modified work assignment (limited duty assignment) that included up to 8 hours of office duties, no lifting over 10 pounds, no bending or twisting, and primarily sitting, up to 8 hours. On March 12, 2019, Complainant’s medical doctor signed updated medical restrictions for the period of February 20, 2019 to July 2019, which stated that Complainant should perform sedentary work, lifting no more than 10 pounds, and could not deliver mail. Complainant contends she was subjected to discrimination when she was sent to work at other stations on January 14 to 18, 22, 28, and February 8, 2019.2 Complainant also contends she was subjected to discrimination when she was instructed to go home on various dates, identified by reference to Form 3971s in the record. 2 The AJ dismissed claim 2 for untimely EEO counselor contact because the record reflects that Complainant initiated EEO counselor contact on August 26, 2019. The AJ noted that forty-five days prior was July 12, 2019. Here, Complainant alleged that claim 2 occurred on eight dates between January 14, 2019 and February 8, 2019. The AJ therefore properly determined that all incidents encompassed within claim 2 were the subject of untimely EEO contact. Moreover, we conclude that even if these allegations had been timely raised, no discrimination was established for the reasons detailed later in this decision. 2022003782 4 Complainant stated that on each date, management officials stated they were sending her home because there was “no work available.” Several supervisors testified that, on the occasions identified by Complainant, she was either sent to other work-stations or sent home because there was no available work within her medical restrictions available in her regular work station. Complainant, however, contends, “there were other light duties persons who were still accommodated when I was sent home, which showed there was still work that had to be done.” Complainant identified four named employees as her comparators but admits she did not know what the restrictions were for the four named comparators. However, we conclude the AJ correctly determined these were not valid comparators. The record shows that two comparators (one female comparator and one male comparator) had different limitations than Complainant. A male comparator could carry mail while Complainant could not during most of the time encompassed. Another named female comparator was limited in her ability to walk and was also off work on a full-time basis, following a surgery. Complainant was placed on Emergency Placement on August 23, 2019. The record reflects that a named carrier notified the union that Complainant had purposely pushed him. The record contains a copy of the Emergency Placement in Non-Duty/Without Pay Status, dated August 23, 2019. Therein, the supervisor placed Complainant on notice that she was in a non-duty status, without pay, pending the completion of the investigation. According to the supervisor, when he asked Complainant about the incident on the day it happened, she first asked, “Did he need to go to the ER?” However, she later denied that it happened. Therefore, the supervisor believed further investigation of the incident was needed.3 Complainant alleged a male employee was not disciplined after he confronted another employee. However, the record establishes this proffered comparator reported to a different supervisor than Complainant. After an independent examination of the evidence of record, we conclude the AJ correctly determined that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management for the disputed actions were a pretext designed to mask a discriminatory motivation. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment decision finding no discrimination. 3 Complainant filed a grievance on the matter, which was later settled and she was paid for the time she was on administrative leave during the investigation. 2022003782 5 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). 2022003782 6 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 January 31, 2023 Date