[Redacted], Marina A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020004425 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marina A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004425 Hearing No. 471-2020-00045X Agency No. 4J-481-0135-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June 2, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND Complainant was employed as a Lead Sales and Services Associate at the Mount Clemens Main Post Office located in Mount Clemens, Michigan. Her immediate supervisor was S1. On July 23, 2019, she filed a complaint alleging discriminatory harassment based on race (Caucasian), sex (female), age (over 40), and retaliation in that she felt forced to retire when: (1) On dates to be specified, her requests for different nonscheduled days were denied; (2) On dates to be specified, she was not paid for all hours worked; 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. 2020004425 2 (3) On March 1, 2019, she was not permitted to cancel scheduled annual leave and come to work; and (4) On dates to be specified, S1 stated, “why don’t you just retire.”2 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 requested a hearing. The AJ notified the parties, sua sponte, of an intent to issue 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 AJ found that, viewing the evidence in the light most favorable to Complainant, she failed to produce evidence that she could establish a claim of harassment or discrimination. With respect to claim 1, Complainant stated that from January 2019 to March 2019, she was not permitted to come to work two hours earlier on Mondays and Wednesdays, which were her non- scheduled days. According to Complainant, her requests were denied. S1 stated that she did not deny Complainant’s requests, and that the only schedule change request that Complainant made to her was for annual leave from February 24, 2019 to March 30, 2019, which was approved by her. The AJ found that, despite S1’s denials, Complainant was not permitted to change her nonscheduled days, Complainant maintained that employees representing every protected basis at issue in this case, except age, were permitted to change their nonscheduled days, whether they were male or female or Black or White. For this reason, the AJ found that the bases of race and sex were not supported by the evidence as motivating factors for the Agency not permitting Complainant to change her nonscheduled days. With respect to reprisal, the AJ noted that Complainant contacted an EEO counselor on April 2019, which was after the denials at issue here. Finally, the AJ found that there was no evidence of any abusive conduct or language surrounding the denial being linked to any alleged bases; therefore, claim 1 could not support a hostile work environment claim. Regarding claim 2, Complainant maintained that while she was on limited duty S1 would not enter her time correctly, so that she could be paid for doctors’ appointments and physical therapy. According to Complainant, S1 stated that when she, S1, was on limited duty, she went to her doctors’ appointments and physical therapy “off the clock,” and she felt Complainant should do so, also. S1 stated that she was not aware of any hours that Complainant worked that she was not paid for and that this should have been brought to her attention. The AJ again found that the bases of race and sex were not supported by the evidence as motivating factors for the Agency because Complainant indicated that male, female, Black, and White employees were treated differently than her. 2 The Agency did not accept for investigation Complainant’s claim that she was not paid per a grievance settlement because it failed to state a claim. This allegation is not in dispute on appeal and will not be addressed in this decision. 2020004425 3 Moreover, the AJ noted that with respect to age, there was no evidence of any abusive conduct or language involved in the denial of her pay which would support a hostile work environment claim. With respect to reprisal, the AJ noted that Complainant never specified that dates when claim 2 took place, which the AJ found to be fatal to her claim. Moreover, one of her comparators also engaged in EEO activity which suggested that reprisal was not a motivating factor. Finally, the AJ found that, to the extent that these matters took place before April 2019, they would have occurred prior to Complainant’s EEO activity. Regarding claim 3, Complainant stated that she scheduled leave but when she tried to cancel the leave, S1 would not permit her to do so because the work schedule was already posted. S1 stated that, on March 1, 2019, Complainant’s request to cancel her annual leave for the upcoming week was not honored because she did not put the request in writing until after the schedule was already posted. S1 noted that, in the past, Complainant had always submitted cancelation requests like this prior to the schedule being posted. S1 stated that only a very limited number of employees canceled their scheduled leave, and those employees always let management know about the cancellation prior to the schedule being posted and they put it in writing so that there was a record. Complainant, according to S1, was the only one who violated this policy. The AJ found that, even viewing the evidence in the light most favorable to Complainant, she could not establish a genuine dispute that she was subjected to a hostile work environment or that S1’s actions were based on her protected bases. Complainant, the AJ noted, stated that “everyone” was permitted to change their scheduled leave except her; therefore, Complainant could not establish that her protected bases were a motivating factor for the Agency’s action as individuals in her protected groups were permitted to cancel their annual leave. Regarding claim 4, Complainant stated that in every month in 2018, except November, and in January and February 2019, S1 stated to her, “Why don’t you just retire.” Complainant maintained that S1 would make this comment when Complainant asked to change her schedule to come in early. According to Complainant, S1 never made such comments to other employees. S1 denied Complainant’s accusation. She stated that she never suggested or told Complainant to retire but noted that Complainant often spoke of retiring. S1 also denied ever being told to “weed out” older employees. The AJ found that, even viewing the evidence in the light most favorable to Complainant, she could not establish a genuine dispute that a hostile work environment existed. The AJ found that, assuming S1 made the comments at issue, they were not severe or pervasive enough to create an objectively hostile work environment that a reasonable person would find hostile or abusive. 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. 2020004425 4 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). 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 in Complainant’s favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including Complainant’s 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 finding no discrimination. 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). 2020004425 5 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). 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. 2020004425 6 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 8, 2021 Date