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

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2021001558 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dovie W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021001558 Hearing Nos. 532-2018-00039X, 532-2018-00112X, 532-2019-00181X Agency Nos. 1C-441-0048-17, 1C-441-0015-17, 1C-441-0023-18 DECISION 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 November 2, 2020 final order concerning an equal employment opportunity (EEO) complaints claiming 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 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 for the Agency as a Mail Handler in Cleveland, Ohio. Complainant filed three formal EEO complaints, later consolidated, claiming that the Agency discriminated against her based on her disability, race (African American), color (Black) and in reprisal for prior protected EEO activity. Complainant’s claims were framed in the following fashion: 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. 2021001558 2 Agency Case No. 1C-441-0015-17, EEOC Hearing No. 532-2018-00112X: Whether Complainant was discriminated against because of her disability and subjected to reprisal when, from January 30, 2017 and continuing for a period thereafter, her disability was not accommodated and she was not permitted to work. Agency Case No. 1C-441-0048-17, EEOC Hearing No. 532-2018-00039X Whether Complainant was discriminated against based on her disability and whether she was subjected to reprisal when: 1) on May 29, 2017, she was denied working the holiday; 2) on June 16, 2017, she was charged leave without pay; 3) since July 8, 2017, she had been denied an accommodation; 4) on September 4, 2017, she was denied working on Labor Day; 5) on or about August 3, 2017, she requested FMLA; IOD; LWOP for certain dates but management charged her otherwise; 6) on or about August 18, 2017, her request for accommodation first made on January 30, 2017, to work in the damaged mailed area was ignored; and 7) on unspecified dates and continuing, management does not properly input her holiday time. Agency Case No. 1C-441-0023-18, EEOC Hearing No. 470-2019-00181X: Whether Complainant was subjected to discrimination on account of her race (African American), color (Black), her disability and whether she was subjected to reprisal for prior EEO activity when: 1) between January 5, 2019, through January 12, 2018, she was not accommodated with an 8 hour days; and 2) on March 7-8, 2018, she was charged sick leave. After the complaints were investigated, the Agency provided Complainant with a copy of the report of investigations and notices of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on the above referenced matters. On November 19, 2019, the Agency filed a motion for a decision without a hearing. On August 28, 2020, the AJ issued a decision by summary judgment finding no discrimination or unlawful retaliation was proven on any of the issues alleged. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination 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). 2021001558 3 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). 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 for Complainant. In her decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ found that the Agency asserted that on various dates Complainant’s time was incorrectly recorded and subsequently corrected. The AJ found that the Agency stated that due to Complainant’s workers’ compensation coverage, many of Complainant’s absences should have been recorded to reflect that status. However, timekeepers were unaware of that status or were unaware of how workers’ compensation hours should be recorded. The AJ found that Complainant failed to establish that the Agency’s articulated reasons for its action were pretext for discrimination and/or retaliation. Regarding Complainant’s claims involving a denial of a reasonable accommodation, the AJ found that Complainant was not denied a reasonable accommodation. The AJ found that the Agency stated that Complainant’s work hours were limited based on her medical restrictions. In addition, the AJ set forth that the Agency asserted that Complainant was compensated through workers’ compensation for the four hours in the workday that she could not work. The AJ further found that while Complainant desired to work in a specific area (the patching area), employees were already assigned to that section and work was not available. 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 against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021001558 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). 2021001558 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 March 7, 2022 Date