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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004110 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janiece H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004110 Hearing No. 420-2021-00194X Agency No. 1G-351-0057-20 DECISION On July 26, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), after the Agency failed to issue a final order following a decision by an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency’s Birmingham Processing and Distribution Center in Birmingham, Alabama. On January 6, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) 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. 2022004110 2 1. On August 5, 2020, Complainant was given an investigative interview and subsequently, on August 18, 2020, she was issued a Notice of Removal; and 2. On August 18, 2020, Complainant’s request for two weeks of Family First Coronavirus Response Act Leave was not granted. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s November 16, 2021 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on December 9, 2021. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 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. 2022004110 3 Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find that the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to the investigative interview, Complainant’s supervisor (Supervisor: female) averred that Complainant was asked about “over 30 dates” where there were instances of tardiness or unscheduled absences and that Complainant’s responses “varied from she was sick, Covid child-care leave usage, and she ‘did not recall’ was stated on numerous dates.” Supervisor further averred that “the covid childcare dates were removed from the Request for discipline action [and] the Notice of [Removal], which is why only the tardies [sic] are listed on the Notice of Removal.” With regard to the Notice of Removal, Supervisor averred that Complainant had previously been issued a Notice of Removal dated June 6, 2019, for unacceptable attendance and conduct. According to Supervisor, on April 8, 2020, Complainant signed a Last Chance Agreement dated March 30, 2020, which placed the original Notice of Removal in abeyance, provided that Complainant abide by the terms of the Agreement. Supervisor further averred, however, that Complainant violated the Last Chance Agreement, which led to the August 18, 2020 Notice of Removal. The record shows that the August 2020 Notice listed nine separate instances of unscheduled leave by Complainant between May 27 and July 23, 2020 and noted that during the investigative interview, for each of the instances Complainant, when asked why she was late, responded “I do not recall.” With regard to the denial of two weeks of Family First Coronavirus Response Act Leave, Supervisor averred that Complainant: 2022004110 4 [D]id not request FCRA, which was the leave covered under Family Medical Leave and up to 12 weeks off. The Complainant handed me a 3971 with just COVID LEAVE under “other.” She told me it was to get her child started with home schooling. I told her that was fine, but she needed to resubmit a request with the correct leave type included. I denied the 3971 with the reason listed as ESL [Emergency Sick Leave] issued in June 2020. When I gave Complainant the denied 3971, I explained that she had used the Emergency Sick leave in June, but she could use the EFML the same as FCRA. I then went on to explain to the employee that she would have to chose annual leave, sick leave, or LWOP for the 80 hours she was requesting. I also informed the Complainant that she could take up to 12 weeks, but the last 10 weeks were at 2/3 of her pay. The Complainant did not have any annual leave or sick leave to use. I don’t think she was aware that the first 80 hours would be LWOP. I asked Complainant to give me another leave request with the correct leave marked, she said she needed to talk to her mother first. The Complainant never gave me another request for leave for child-care. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to the investigative interview and Notice of Removal, Complainant averred that: During the COVID pandemic, with school and daycare closures, parents are scrambling to find care for their children, especially single parents like myself. My son was six years old at the time and I had to be at work at 2 pm. My mother helps with me [sic] with my son however, she is also a[n Agency] employee. There were days that she had other responsibilities and my aunt would keep my son for me. Having to drive approximately 45 minutes to get my son to my aunt’s house in the lunch time traffic, there were occasions that I arrived at work a few minutes after my begin tour time. I was told by [Supervisor] that I could not make up time at the end of the tour to assure that they had 8 hours for the day. [Supervisor] and [Complainant’s Manager (Manager: female) both know I have a young son. My request for COVID leave had been granted a few times earlier, especially around the late spring when cases in the pant and annex begin [sic] to rise. My aunt has permanent liver and kidney damage and with my mother and myself working at the [Agency] she felt uncomfortable keeping my sone in case he was asymptomatic with both of us working in that environment. I don’t recall any of my co-workers receiving discipline at the time I did. Complainant argues that the Union and the Agency agreed to a “Liberal Leave Policy” to “allow employees to use their sick leave for unexpected childcare needs as a result of the COVID-19 Pandemic” and that the agreement stated that “managers and supervisors should allow liberal 2022004110 5 changes of schedule in recognition of the disruption caused by the” pandemic, including temporary changes that result from childcare issues or the unavailability of a child’s primary caregiver as a result of” the pandemic. Complainant further maintained that two of her entries on her time sheet had been falsified. In addition, Complainant averred that due to being held up at gunpoint several years earlier she had developed Post Traumatic Stress Disorder, debilitating anxiety, and depression, which caused her to miss a lot of work. With prayer and therapy, those years are pretty much behind me, however, my supervisors will not forget those early years. Over the years I have tried to prove I am a good employee. There has never been an issue with my work or work ethic. My attendance has always been closely watched because of those early years. I did well after signing the Last Chance Agreement, however I do still have a young child and there are occasions that I had to take off. While we are not unsympathetic to Complainant’s difficulties as a single working mother trying to juggle the needs of her child and her job during a pandemic, we find that Complainant has not met her burden of showing, by a preponderance of the evidence, that the Agency’s actions, while perhaps harsh, were due to her sex. We note in this regard that both Supervisor and Manager are the same sex as Complainant. Complainant avers that “it is my belief that these childless women have issues with young women with children and the time they have to take off with them.” Such an argument, however, would support a claim that Complainant was subjected to discrimination based on her status as a parent, not based on her sex. Complainant identified numerous male coworkers who arrived late to work but who were allowed to make up their time at the end of their tour and received no discipline. Supervisor, however, pointed out that none of these comparators were under a Last Chance Agreement based on prior attendance issues, and hence none were similarly situated with Complainant. We note that Complainant does not deny that she had attendance issues, or that she was the subject of a Last Chance Agreement due to prior attendance issues. With regard to the denial of Family First Coronavirus Response Act Leave, Complainant averred that “the Department of Labor granted up to 12 weeks of leave during this pandemic... I used some leave in June but not 12 weeks.” Complainant’s response appears to misunderstand Supervisor’s argument that the first two weeks of the twelve weeks of Family First Coronavirus Response Act Leave would be unpaid unless Complainant could supplement the leave with sick leave or annual leave, and that Complainant had exhausted her sick and annual leave. We note Complainant does not address Supervisor’s argument that she denied the request because Complainant filled out her leave request incorrectly. 2022004110 6 Following a review of the record we find that Complainant has not established, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretextual. Nor has she shown that Agency officials harbored discriminatory animus against her sex. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final order. 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). 2022004110 7 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. 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 26, 2023 Date