[Redacted], Kathleen P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2020004648 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathleen P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004648 Hearing No. 450-2015-00251X Agency No. 1G-754-0039-15 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 May 26, 2020, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the time at issue, Complainant was a Parcel Post Distribution Machine Clerk at the North Texas Processing and Distribution Center in Dallas, Texas. Her immediate supervisor was S1. On April 4, 2015, Complainant filed a formal complaint, which was later amended, alleging discrimination based on retaliation (prior EEO activity) when: 1) on or around March 1, 2015, she was denied an overtime opportunity; 2) on dates to be specified, her requests for annual leave were 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. 2020004648 2 denied; and 3) on May 6, 2015, she was forced to work outside her medical restrictions and was subsequently injured.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. With respect to claim 1, Complainant maintained that S1 retaliated against her when she denied her an opportunity to work overtime on March 1, 2015. According to Complainant, her union steward, B1, told her to work overtime on March 1, 2015, which was her scheduled day off. Complainant went to work on March 1, but S1 prevented her from working and asked her who had authorized her to work overtime. Complainant stated that she attempted to obtain approval from S1 before coming to work on March 1 but never received a response back from her. S1 stated that she denied Complainant the opportunity to work overtime on March 1, because she had not been called in by management to work that day. S1 also stated that she questioned B1 about Complainant’s assertion that he told her she could work overtime, but he denied informing Complainant that she was authorized to work on March 1. With respect to claim 2, Complainant alleged that S1 retaliated against her when her requests for annual leave for January 2, 2015, and March 12 - 13, 2015, were denied. The AJ found that the January 2, 2015 denial was untimely raised because, although Complainant reasonably suspected that she had been subjected to discrimination on January 2, 2015, she waited 59 days to contact an EEO Counselor, i.e., March 6, 2015. Consequently, the AJ dismissed this claim. Regarding Complainant’s request for annual leave for March 12 - 13, 2015, the AJ noted S1’s assertion that the request was denied due to staffing problems. The AJ found that Complainant provided no evidence to dispute S1’s assertion; nor did she identify any employee who was similarly situated who was treated in a more favorable fashion. In this regard, the AJ noted that C1, a coworker, who had no prior EEO activity, was also denied leave by S1 at the same time because of issues with staffing. With respect to claim 3, Complainant stated that S1 assigned her to work in Automation on May 6, 2015, despite Complainant informing her that she was unable work this assignment because of her medical restrictions. Complainant further maintained that the automation work she was ordered to perform resulted in an exacerbation of her existing shoulder injury. 2 Complainant also alleged that on March 6, 2015, she was subjected to a pre-disciplinary interview. This claim was dismissed on the grounds that it failed to state a claim. Because this dismissal was not specifically contested on appeal, we will not address it further in this decision. 2020004648 3 S1 stated that she asked Complainant to perform automation duties on May 6 based on her seniority. The AJ found that at the time S1 instructed Complainant to work in Automation on May 6, Complainant had provided no documentation to S1 confirming the existence of any medical restrictions that had been imposed upon her. The AJ also found nothing in the record to support a finding that Complainant’s shoulder injury was a substantially limiting physical impairment.3 With respect to Complainant’s assertion that S1 retaliated against her for engaging in prior EEO activity, the AJ found that there was no evidence supporting a finding that S1 directed Complainant to perform automation work because of her prior EEO activity. Specifically, the AJ did not find that this assignment was “adverse” in nature or that there was a causal nexus between S1’s action on May 6, 2015, and the EEO complaints that Complainant filed in June 2014 and 2008.4 Assuming Complainant did establish a prima facie case or reprisal discrimination, the AJ found that, for claims 1, 2, and 3, she provided no evidence to support a finding that the Agency’s actions were a pretext for discrimination. With respect to claim 3, the AJ found that Complainant was assigned automation work based on her seniority rank and that there is no evidence that she was singled out. In her affidavit, Complainant refutes S1’s assertion that she was not aware of Complainant’s restrictions. Specifically, she stated that S2, another supervisor, was present and that he told S1 not to send her to Automation. S2, she stated, indicated that he was aware of Complainant’s documentation and that she should be sent to the “bay area” but that S1 refused stating that S3, another supervisor, could “deal with it.” According to Complainant, S1 did not give a reason for her decision until the next day, after she aggravated her injury, when she maintained that she was unaware of Complainant’s restrictions. S2, Complainant maintained, told management during the safety review that he told S1 that Complainant had documentation and it was not going to be good if she sent her to Automation. In her opposition to the Agency’s motion for summary judgment, Complainant, argued in part, that S1 was aware of her medical restrictions when she ordered her to work in Automation. She references a handwritten unsworn and undated statement by S2 contained in the Report of Investigation (ROI) of Complaint No. 1G-754-0099-15. In this statement, S2 indicated that on May 7, 2015, a decision was made to: shutdown the APBS [Automated Parcel and Bundle Sorter] and to send the crew to Automation. As [S1] was giving instructions to employees, I told her that [Complainant] had restrictions that I had recently seen on a doctor’s note. I advised [S1] [that] [Complainant] should be allowed to go to Priority Bags, which would not require any overhead lifting. [S1] decline[d] to take my advice and sent [Complainant] to Automation anyway. The instant record does not contain an affidavit from S2. 3 Although Complainant did not allege that the Agency denied her a reasonable accommodation, the AJ found that it was appropriate to also analyze her claim that she was forced to work outside of her medical restrictions as a failure to accommodate claim. 4 We note, however, that the record indicates that an EEO Counselor spoke to S1 on March 31, 2015 regarding claims 1 and 2 and the March 6, pre-disciplinary interview. 2020004648 4 ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. 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. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. 2020004648 5 According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). With respect to claims 1 and 2, we find that there are no genuine issues of material fact in dispute presented here. The record has been adequately developed, Complainant was given ample notice of the Agency’s motion for a decision without a hearing, she was given a comprehensive statement of the allegedly undisputed material facts, she was given the opportunity to respond to such a statement. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained above. Furthermore, we find that the portion of claim 2 concerning Complainant’s denial of leave for January 2, 2015, was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. With respect to claim 3, we find that, even assuming for the purposes of our decision that S1 was aware of Complainant’s medical restrictions after being informed by S2, we do not find evidence that would create a genuine dispute of material fact that Complainant was ordered to work beyond those restrictions. We note in this regard that, according to S2’s statement, Complainant should not have been assigned to a location where overhead lifting was required, but Complainant never stated what her specific restrictions were or what the specific tasks were that she was assigned on May 6th, and how they violated her medical restrictions. Moreover, both Complainant and S1 stated that Complainant was told to speak to S3, the Automation Supervisor, about her medical restrictions. Complainant did not indicate whether she spoke to S3, and if so, what he told her. Even if Complainant worked beyond her medical restrictions, we find no evidence that raises a genuine issue of material fact that it was due to the actions of S1 or any other Agency official.5 Complainant has not shown that the reason set forth that her assignment was based on seniority is false or was a pretext for retaliation. For instance, Complainant has not shown that similarly situated persons were allowed exceptions to any seniority assignment system or that the seniority assignment system was incorrectly applied to her. 5 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than speculation or mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. 2020004648 6 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including 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. 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. 2020004648 7 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation