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

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021001233 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mia N.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001233 Hearing No. 480-2020-00377X Agency No. 4F-900-0327-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 25, 2020, finding no discrimination regarding her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) - Mail Processing Clerk, P-6, in the Agency’s Los Angeles - Rimpau Station in Los Angeles, California. On November 4, 2019, Complainant filed her complaint alleging harassment based on race (African American), color (black), and age (over 40) 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. 2021001233 2 1. On May 16, 2019, management allowed a coworker to harass her; 2. On several occasions, management interrupted her break and lunch times; 3. On May 17, 2019, management changed her reporting time; 4. On May 28, 2019, management asked her if she had paperwork for missing one day; 5. On July 16, 2019, management told her to clock out early or he would clock her out; and 6. On July 17, 2019, and other dates to be specified, she was told to clock out in less than 8 hours. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 24, 2020, the AJ issued a decision without holding a hearing, finding no discrimination. Regarding claim 1, Complainant and her coworker had dispute over a fan. Complainant wanted the fan off because it made her cold, but the coworker wanted it on. When Complainant told Supervisor A about the incident, Supervisor A told her to put a jacket on. Complainant then told Supervisor B who told the coworker to turn the fan off. The coworker then turned the fan off. Regarding claim 2, Complainant’s Manager (M1) indicated that supervisors were authorized to talk with employees when they were on break to ensure the employee did not deviate from their lunch/break schedule and to inquire when they were scheduled to be back on duty. M1 stated that supervisors had to watch Complainant closely because she would often fail to take her break when scheduled and she failed to inform management she was taking an early or late lunch. M1 stated that all employees had set break and lunch times so as to not impact mail operations. Regarding claim 3, M1 indicated that Complainant’s reporting time for May 18, 2019, was changed from 4 am to 7 am due to changes in mail volume. Complainant was notified of this change as she was walking out the door on May 17, 2019. M1 stated that management regularly changed the PSEs schedule (including Complainant) based on operational needs and PSEs were not entitled to a 24-hour notification as regular clerks were. Management tried to inform the employees prior to their clocking out if there was a schedule change next day. Regarding claim 4, M1 indicated that Complainant was asked to provide documentation to support her absence for Saturday, May 25, 2016, Sunday May 26, 2019, and the Holiday on Monday, May 27, 2019. Complainant never provided the requested documentation. M1 stated that all employees were asked to provide documentation to support their unscheduled leave. M1 noted that Complainant had a prior disciplinary record for missing work. 2021001233 3 Regarding claim 5, M1 indicated that Complainant was asked to clock out on July 16, 2019, because she worked over ten hours which was more than her regular shift and had gone into overtime. Regarding claim 6, Complainant claimed that she worked less than eight hours on July 17 and 19, 2019. M1 stated that the Time and Attendance Collection System Records indicated that Complainant worked 10.55 hours on July 17, 2019, and 8.19 hours on July 19, 2019. M1 indicated that management, and not employees, made decisions regarding the availability of work or determining what mail might be delayed. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. 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. 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 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. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant’s supervisors and manager were responsible for making business decisions, assuring compliance with Agency policy and procedures, monitoring employees’ scheduled lunch/break time and leave, and scheduling workhours among its employees, among PSEs and regular clerks. 2021001233 4 Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. 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. CONCLUSION 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). 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. 2021001233 5 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. 2021001233 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 December 8, 2021 Date