[Redacted], Missy P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 10, 2021Appeal No. 2020000592 (E.E.O.C. Feb. 10, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Missy P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000592 Hearing No. 480-2016-00859X Agency No. 4F-900-0040-16 DECISION On September 23, 2019, 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 August 22, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Unassigned Regular City Carrier, CC-1, at the Agency’s Post Office in Lakewood, California. Complainant began working for the Agency on September 14, 2015, and was terminated within her probationary period on November 24, 2015. 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. 2020000592 2 On March 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (41) when, on November 25, 2015, Complainant was terminated from her probationary position after not receiving a 30-day evaluation. According to the termination letter, Complainant failed to meet the requirements of her position due to her work performance and attendance. Complainant noted that she was absent on November 24, 2015, and asserted it was the only day she was absent. Complainant also claimed that her supervisor (S1) failed to properly input her clock rings, which provided a misleading perspective into her performance. Complainant asserted she was unaware of problems with her performance, and that the Postmaster did nothing to address her performance. S1 asserted that he notified Complainant of the Agency’s expectations for her performance, and sent her back for re-training twice. Complainant also received additional on-the-job instruction at San Pedro. S1 identified a meeting on November 10, 2015, with Complainant, in which he explained that Complainant was assigned a route that was expected to take three hours and ten minutes, but Complainant took seven hours to complete the route, and never improved her performance. Complainant did not receive her 30-day evaluation because she was not in the Agency’s employ long enough. An Acting Supervisor, Customer Service (ASCS) testified that she supervised a zone that Complainant occasionally worked in, and that she had to keep an eye on Complainant because she struggled and was on probation. ASCS said that if she “gave her a route, [ASCS] always had to send someone out to assist her. Only when she was on her own did she have a problem.” Both S1 and the Postmaster said that Complainant failed to provide documentation supporting her absence on November 24, 2015. The Postmaster concurred with S1’s explanation and decision. The Postmaster added that 100 percent attendance is expected during a probationary period, and Complainant demonstrated she was incapable of managing her own time unless accompanied or supervised. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 28, 2019, motion for summary judgment and issued a decision without a hearing finding that Complainant was not subjected to discrimination as alleged.2 The Agency subsequently issued a final order fully adopting the AJ’s decision. 2 The AJ also denied Complainant’s motion to amend her complaint to include an additional allegation because Complainant’s prosecution of the instant complaint was at such an advanced stage, and the claim did not occur until after the close of discovery. The AJ declined to reopen discovery, but rather directed Complainant to contact an EEO counselor if she sought to pursue this claim. 2020000592 3 CONTENTIONS ON APPEAL Complainant argues that she should not have had to dispute the Agency’s statement of facts because the Agency did not timely file its motion for summary judgment. Complainant points out that the deadline was March 27, 2019, but the Agency did not file its motion until March 28, 2019. Complainant maintains that her performance was not an issue and that she only missed one day of work. Complainant again wishes to amend her complaint to include the additional claim. Accordingly, Complainant requests that the Commission reverse the 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). We first address Complainant’s arguments on appeal that the AJ should not have considered the Agency’s motion for summary judgment because it was filed one day too late and that the AJ erred in denying her motion to amend. The Commission notes that Commission regulations and precedent provide AJs with broad discretion in matters relating to the conduct of a hearing, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See 29 C.F.R. § 1614.109(e); Equal Employment Opportunity Commission Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). In this case, Complainant has not shown that the AJ abused her discretion when she allowed the Agency to file a late motion for summary judgment. While the Agency’s motion was filed one day late, Complainant does not set forth any evidence to demonstrate she was unfairly prejudiced by the one-day delay. Likewise, we find that the AJ did not abuse her discretion in denying Complainant’s motion to amend. We agree with the AJ that Complainant’s motion to amend was filed too late to include it in the instant complaint as discovery had been closed and the alleged incident occurred thereafter. Accordingly, Complainant should seek EEO counseling on this claim if she wishes to pursue it. In sum, the Commission has reviewed the record and finds no abuse of discretion or other reversible error resulting from the manner in which the AJ managed and adjudicated this case. 2020000592 4 An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. S1 explains that the Agency had two separate grounds for terminating Complainant during her probationary period. First, Complainant requested emergency annual leave around the Thanksgiving holiday without submitting acceptable documentation in support. Second, Complainant had demonstrated inadequate performance despite re-training and shadowing. Complainant did not receive a 30-day evaluation because she was terminated before completing her first 30 days of probation. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant simply has not done so. As to her absence, Complainant does not provide evidence that she submitted adequate documentation to support her absence. Complainant attaches a doctor’s note to her affidavit, but does not show that the Agency received the note, or that it contained sufficient information to justify her leave. Complainant addresses her performance by speculating that management changed her clock rings. But Complainant’s speculation does not address the Agency’s explanation, which is that she demonstrated an inability to perform the routes assigned to her in the time allotted for the routes. 2020000592 5 Construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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). 2020000592 6 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. 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 10, 2021 Date Copy with citationCopy as parenthetical citation