[Redacted], Doretta F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2020004551 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doretta F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004551 Hearing No. 471-2019-00087X Agency No. 4X-048-0001-19 DECISION On July 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 24, 2020 final action concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Customer Care Agent assigned to the Agency’s Customer Care Center in Troy, Michigan. On January 24, 2019, Complainant filed the instant formal complaint. Complainant alleged that formal complaint alleging that the Agency discriminated against her on the basis of disability (asthma) when: 1. On September 28, 2018, she was not provided with refresher training after returning to work; and 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. 2020004551 2 2. On November 21, 2018, she was issued a Notice of Removal. 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. Thereafter, the AJ issued a Notice of Proposed Summary Judgment. The AJ subsequently issued a decision by summary judgment finding no discrimination. The Agency issued its final action adopting the AJ’s decision finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Here, the AJ properly determined that Complainant has not presented evidence or argument to show that there are genuine issues of material fact to be decided at a hearing. We concur with the AJ that the relevant management officials articulated legitimate, non-discriminatory reasons for the disputed actions during the investigation into the complaint. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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 consideration was a factor in the adverse employment action. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs 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). 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC 2020004551 3 Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the relevant period, Complainant’s supervisors were the Customer Service Supervisor (“CSS”) and Operations Manager of the Customer Care Center. Complainant identified her disability as severe asthma which can be triggered by stress, scents, weather and climate change. She stated that she has occasional flare-ups during which she is unable to speak or breath. In claim 1, Complainant claimed that on September 28, 2018, she was not provided with refresher training after returning to work. The CSS said that Complainant had previously been issued a Notice of Removal, which was reduced to a 45-day suspension through the grievance process. Complainant served this suspension from February 2018 to September 2018. Upon her return to work, Complainant requested training to include all changes that occurred while she was off work. CSS stated that when Complainant returned to work on October 13, 2018, refresher training was provided in the form of “buddy jacking” with another official to refresh Complainant’s knowledge of the workspace tools used to take calls. CSS stated that she also provided Complainant with a refresher on attendance policies. On November 23, 2018, CSS issued Complainant a second Notice of Removal for Failure to Adhere to Attendance Regulations/Absence Without Official Leave (“AWOL”). CSS explained that since Complainant returned to work, she incurred several incidents of unscheduled sick leave, Leave Without Pay, and tardiness. Complainant’s prior disciplinary history was also considered in issuing the removal, and included the following matters: 1. Issued a Letter of Warning on August 17, 2016, for Failure to Adhere to Attendance Regulations; 2. Issued a three (3) day suspension on December 2016, for Failure to Adhere to Attendance Regulations; 3. Issued a Seven (7) Day Suspension on June 9, 2017, for Failure to Adhere to Attendance Regulations; 4. Issued a Fourteen (14) Day Suspension on June 9, 2017 for Failure to Adhere to Attendance/AWOL; and 5. Issued a Long-Term Suspension (May 19, 2018 through September 28, 2018), dated February 27, 2018 for Failure to Adhere to Attendance Regulations/AWOL. The AJ noted that Complainant’s attendance was deemed “erratic and largely unpredictable.” The AJ noted further that CSS indicated that it was Complainant’s failure to report to duty as scheduled, and not any medical issue, which precipitated the removal notice. The AJ also found that there was no evidence that Agency management was aware of Complainant’s physical impairment until “possibly November 2018.” 2020004551 4 Specifically, Complainant asserted that she made CSS aware of her condition in November 2018, when she submitted FMLA documentation. However, CSS stated she had no notice of Complainant’s physical condition until April 2019, when she received a faxed copy of Complainant’s medical documentation dated April 5, 2019, upon discover of an email from another supervisor. In summary, the AJ stated that, even when evidence was viewed in the light most favorable to Complainant, there was no evidence that Complainant was denied refresher training, and that there was no evidence that the November 2018 removal notice was based upon her physical impairment. Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s summary judgment finding no discrimination. 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 2020004551 5 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. 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. 2020004551 6 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 December 14, 2021 Date