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

Equal Employment Opportunity Commission

Jul 7, 2022

Appeal Nos. 2021003379, 2021003380, 2021003568 (E.E.O.C. Jul. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melani F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal Nos. 2021003379, 2021003380, & 2021003568 Hearing Nos. 560-2020-00252X, 560-2020-00366X, & 560-2019-00320X Agency Nos. 4J-630-0030-20, 4J-630-0072-20, & 4J-630-0028-19 DECISION On May 5, 2021, May 7, 2021, and June 7, 2021, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), respectively from the Agency’s April 2, 2021, April 8, 2021, and May 6, 2021, final decisions concerning her equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decisions. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s St. Louis Gravois Station in St. Louis, Missouri. 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. 2021003379, 2021003380, & 2021003568 2 On February 16, 2019, January 4, 2020, and May 9, 2020, Complainant filed three EEO complaints alleging that the Agency discriminated against her on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On November 23, 2018, management would not call an ambulance for her; 2. On February 23, 2019, her Supervisor drove off and left her in the parking lot in the dark; 3. On March 6, 2019, her Supervisor yelled at her and sent her home; 4. On March 11, 2019, she was involuntarily moved to anther station; 5. On November 2, 2019, Complainant was taken off her higher-level detail; 6. Beginning January 11, 2020, she was not accommodated per her medical restrictions when she was not permitted to work; 7. On January 15, 2020, she was charged with Leave Without Pay (LWOP) and Annual Leave instead of Office of Worker's Compensation (OWCP) Leave; 8. Beginning on February 6, 2020, she was not accommodated per her medical restrictions when she was not permitted to use a special chair; and 9. On February 15, 2020, she was sent on an involuntary detail. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In each of Complainant’s claims, she timely requested a hearing. However, in EEOC Appeal No. 2021003379, Complainant submitted an email indicating that she would like to withdraw her hearing request in Hearing No. 560-2020-00252X. The Agency subsequently issued a final decision (FAD 1) on April 2, 2021, finding that Complainant was not subjected to discrimination as alleged in claim 5. Complainant appealed this decision on May 5, 2021. In EEOC Appeal No. 2021003380, Complainant similarly submitted an email indicating that she would like to withdraw her hearing request in Hearing No. 560-2020-00366X. As such, the Agency issued a final decision (FAD 2) on April 8, 2021, finding that Complainant was not subjected to discrimination as alleged in claims 6 - 9. Complainant appealed this decision on May 7, 2021. 2021003379, 2021003380, & 2021003568 3 In Hearing No. 560-2019-00320X, after a thorough review of all the evidence contained in the record, as well as the party’s arguments, an AJ determined that there were no genuine issues of material fact for which a hearing would be necessary. As such, on April 19, 2021, the AJ granted summary judgment, determining that Complainant failed to establish that she was subject to harassment or discrimination as alleged in claims 1 - 4. The Agency subsequently issued a final decision (FAD 3) adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On June 7, 2021, Complainant appealed this decision which was docketed as EEOC Appeal No. 2021003568. We have consolidated EEOC Appeal Nos. 2021003379, 2021003380, and 2021003536 and will review the matters together below. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, § VI.A. (Aug. 5, 2015) (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”). Claims 1 - 4 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. (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). 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 factfinder could not find in Complainant’s favor. 2021003379, 2021003380, & 2021003568 4 Regarding claims 1 - 4, 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 the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. The Commission concurs with the AJ’s finding that the Agency provided legitimate, nondiscriminatory reasons for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission also finds that Complainant has not provided evidence sufficient to persuade us that the Agency’s actions were pretext for discrimination. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). In the AJ’s decision, they found that Complainant failed to provide evidence as to the occurrence of claim 1, and that the reasons for claim 2 were nondiscriminatory, and Complainant had presented no evidence to establish pretext. As to claim 3, the Agency provided that Complainant was sent home in order to diffuse the situation in accordance with the Agency’s Zero Tolerance Policy, which informs employees that threats, assaults, or acts of violence in the workplace will not be tolerated. Complainant has failed to present evidence that the reasons for the Agency’s actions were discriminatory or pretextual. Finally, as to claim 4, Complainant reportedly stated she was unhappy in her prior position, and as such was moved to another station. While Complainant maintains that this move was retaliatory, the record evidence does not support such a contention. Rather, it appears that the Agency’s actions were nondiscriminatory, and Complainant has failed to establish pretext. 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 the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged in claims 1 - 4. Claims 5 - 9 Upon careful review of the record, we find that the Agency’s FAD 1 and FAD 2 accurately recounted the relevant material facts. The final decisions also correctly identified the legal standard for Complainant to prove that she was subjected to disparate treatment based on sex, disability, and reprisal, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for his nonselection is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). Regarding claim 5, the Agency indicated that Complainant was removed from her higher-level detail because a new employee had been hired at the location and would be starting soon. Moreover, the record reflects that Complainant's higher-level detail was scheduled to end in November 2019. While Complainant maintains that her sex, disability, or reprisal were the true reasons for her removal, she has not provided evidence indicating that the Agency removed her due to discriminatory animus. 2021003379, 2021003380, & 2021003568 5 Regarding claims 6 - 9, the record indicates that management immediately addressed Complainant's OWCP claim by providing her with Limited Duty Job assignments. The Agency confirmed that management provided Complainant work within her restrictions, and when there was not work available within those restrictions, Complainant was sent home. The Agency has also noted that Complainant's disability accommodation form did not call for any use of a special chair, and there was no mention that Complainant should be provided a mounted route for her deliveries. The Agency provided that management honored her restrictions and provided her multiple Limited Duty Job assignments within her restrictions. Regarding Complainant's leave, there is no evidence which shows that management changed Complainant's requests for use of OWCP to LWOP or Annual Leave. The record also indicates that Complainant's detail, raised in claim 9, was voluntary, and that she worked in the position without complaints. Complainant has not presented evidence which sufficiently challenges the Agency’s provided explanations, nor that shows that the reasons provided were pretextual. Therefore, we find that as to claims 5 - 9, the Agency properly found that Complainant was not subject to discrimination as alleged. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency in FAD 1 and FAD 2 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 decisions 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). 2021003379, 2021003380, & 2021003568 6 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. 2021003379, 2021003380, & 2021003568 7 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 July 7, 2022 Date