[Redacted], Kiara R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2021001665 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kiara R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001665 Hearing No. 480-2020-00139X Agency No. 4F-926-0056-19 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 24, 2020 final order concerning an equal employment opportunity (EEO) complaint 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Postmaster at the Agency's facility in Irvine, California. On May 20, 2019, Complainant filed a formal EEO complaint alleging discrimination by the Agency based on race (mixed), sex, disability (PTSD, anxiety attacks, sleep apnea, and migraines) and in reprisal for protected EEO activity (instant case and OIG complaint) when: 1. On April 9, 2018, August 14, 2018, March 19, 2019, May 16-26, 2019 and June 2019, she was not allowed to make the selection decision for vacancies in her office; 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. 2 2021001665 2. During October 2018 and December 2018, her request to join the Chamber of Commerce was denied; 3. On April 26, 2019, April 17, 2019, April 3, 2019, May 10, 2019 and other unspecified dates, her eBuy requests for supplies were denied; 4. October 2018 through January 2019, her National Performance Assessment (NPA) was removed because of an error on her profile; 5. On January 1, 2019 and ongoing, she was threatened, undermined, and belittled in emails, at telecons, and meetings; 6. On February 25, 2019, and other unspecified dates, various members of her staff were allowed to go on detail assignments even after she stated they were not approved to go, and her requests for overtime to cover them was denied; 7. On February 25, 2019, her Agency cellphone was taken from her and her EEO documents were deleted; 8. On February 8, 2019, she was placed on a 16.7 Emergency Placement; and 9. On May 29, 2019 and June 3, 2019, she was questioned in regarding her relationship to a selectee, on a vacancy selection she made. After its investigation into the complaint, 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. 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. 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). 3 2021001665 In order 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. Regarding claim (1), the AJ found that Complainant was allowed to make many selections decisions for the office, although upper management did make some of the decisions as she alleged. However, the AJ determined that there was simply no evidence that discriminatory factors played a role in the matter. Regarding claim (2), the AJ was persuaded by the Agency's finding that the fee to pay Complainant's Chamber of Commerce membership was not an efficient use of Agency funds earmarked to generate business leads. Regarding claim (3), the AJ determined from the evidence of record that the Complainant's eBuy requests were denied by the Agency's Finance unit due to submission deficiencies which Complainant failed to correct. Regarding claim (4), the AJ determined that Complainant’s NPA was removed due to an error on her profile and not for any discriminatory reason. Regarding claim (5), the postal facilities under Complainant's supervision were struggling and not improving which resulted in a letter of concern and placement on a performance improvement plan. The AJ found that in claim 5, the Agency found that Complainant's post office failed compliance, had employees with too much overtime, and that there were failures in the mail delivery process which resulted in discussions with Complainant. Regarding claim 6, Complainant's objection to employees under her supervision being allowed to go on detail assignments over her objection, the AJ noted the Agency determination that the detail assignments were for employees with special skills necessary to fill Agency operational needs. Regarding claims (7) and (8), the Agency explained that Complainant's Agency cell phone was taken, documents erased, and Complainant was placed on administrative leave pending the completion of an investigation into Complainant's involvement in alleged false package scans. Finally, regarding claim (9), the record indicates that Complainant was questioned about a vacancy selection she made as a result of an allegation that Complainant was related to the selectee. 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 Complainant failed to prove, by a preponderance of the evidence, that the explanations proffered by Agency witnesses for the disputed actions were pretext masking discrimination or unlawful retaliation. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 4 2021001665 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). 5 2021001665 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