[Redacted], Helen V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020002908 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002908 Hearing No. 430-2018-00490X Agency No. 4K-270-0046-18 DECISION On February 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 23, 2020 final action 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked as a City Carrier at the Agency’s Westside Station in Greensboro, North Carolina. On March 30, 2018, Complainant filed a formal EEO complaint alleging she was subjected to discriminatory harassment on the bases of race (African-American), color (“High Brown”), disability (lower back injury, as well as anxiety and depression), age (43), and/or reprisal for prior EEO activity 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. 2020002908 2 1. on February 8, 2018, she was charged with being Absent Without Leave (AWOL); and 2. from February 14-25, 2018, she was not permitted to work after sustaining an injury while on duty. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. Complainant responded to the Motion. On January 14, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s decision. The instant appeal from Complainant 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 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. We determined that in this case, the AJ properly exercised discretion in issuing a decision without a hearing, for the reasons more fully elaborated below. 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, she must first establish a prima facie 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. 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020002908 3 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). Here, we concur with the Agency’s conclusion that Complainant’s supervisor and other relevant management officials articulated legitimate, non-discriminatory reasons for the disputed actions during the investigation into the complaint. During the relevant period, the Supervisor of Customer Service was Complainant’s supervisor (“S1”). Another Supervisor of Customer Service/Acting Station Manager (“S2”) also supervised Complainant. Regarding claim 1, Complainant asserted that on February 8, 2018, she was charged with being Absent Without Leave (AWOL). Specifically, Complainant stated that she injured her back while trying to load a parcel onto a U-cart and she was informed by S1 that she would be marked AWOL if she went to the doctor. However, according to S1 (African American, brown, over 40) Complainant never reported to work or responded to S1’s text messages about her absence which is why she marked Complainant as AWOL.2 Regarding claim 2, Complainant alleged that from February 14-25, 2018, she was not permitted to work after sustaining an injury on duty. Complainant said she requested a light or limited duty assignment during this period but was denied by S1 and S2. The record reflects that Complainant submitted her leave slips for annual leave which were approved by S2. S2 noted on Complainant’s leave slips that there was no light duty assignments available within Complainant’s medical restrictions on February 14-17, 2018 and her claim for Continuation of Pay (COP) as part of her workers’ compensation claim for her back injury was pending and eventually approved.3 Complainant has failed to prove, by a preponderance of the evidence, that management’s proffered legitimate, non-discriminatory reasons for initially marking her as AWOL on one day and not providing her with a light duty assignment during the few days she was out of work due to her back injury, were a pretext designed to mask their true discriminatory motives. There is simply no evidence to support a finding that any of Complainant’s protected bases or unlawful retaliatory animus played any role in the events at issue. 2 The record reflects that as a result of a grievance, the AWOL was later changed to approved annual leave. 3 The record reflects that Complainant was later granted workers’ compensation continuation of pay (COP) for February 20-24, 2018, and work time for February 14, 2018, because it was the date of Complainant’s injury. Since Complainant was out of work for less than 14 days, she was not eligible for COP for the first three days after her injury and was used approved annual leave for February 15 through 18, 2018. 2020002908 4 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment finding no discrimination was established. 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. 2020002908 5 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. 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 September 7, 2021 Date