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

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020003459 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rebecca B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020003459 Hearing No. 443-2020-00003X Agency No. 4J-530-0056-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 27, 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 At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a Lead Customer Services Clerk at the Brookfield Wisconsin Post Office in Brookfield Wisconsin. S1 was the Manager, Customer Services. S2 was the Acting Postmaster. Complainant filed an EEO complaint alleging discrimination on the bases of race (Black), color (black), sex (female), and age (over 40) when, on January 10, 2019, she was placed on Emergency Placement, and, on March 14, 2019, she was issued a Notice of Removal. 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. 2020003459 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. Thereafter, the AJ notified the parties that she was considering issuing a decision without a hearing and provided them with an opportunity to respond. The Agency responded but Complainant did not, and the AJ 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. Complainant stated that she was placed on Emergency Placement for eating perishable items designated to be discarded. She further stated that S1 notified her of her removal, by mail on March 14, 2019, for unacceptable conduct relating to the performance of her duties. Pursuant to a grievance settlement, Complainant returned to duty on April 30, 2019, and was charged with Leave Without Pay for the time spent on Emergency Placement. Complainant maintained that during the preceding seven years, at the discretion of the supervisors, supervisors and/or employees in the unit would open packages of perishable items; and they would either all eat them, donate the items to local shelters, or throw them away. Complainant asserted that her race, color, age, and sex were factors because employees of different races, colors, ages, and sexes opened packages and ate perishable items, but were not placed on Emergency Placement or issued Notices of Removal. Complainant, however, was specifically asked if she was aware of any employees who were treated more favorably than her by the same management official under similar circumstances who engaged in a similar infraction within the past two years and were not issued any corrective action. She answered no, she was not aware of any such employees. S1 stated that during this time frame she had no organizational relationship to Complainant, but she was the management official who made the decision to place her on Emergency Placement, after reviewing a report compiled by the Office of the Inspector General (OIG) and conferring with her manager. Complainant, she stated, was placed on Emergency Placement because she was observed opening/rifling mail and taking/eating items contained therein. S1 indicated that she understood the Agency’s policy to be that undeliverable perishable items were to be treated as waste or donated to an authorized charity. S1 noted that a whistle blower contacted the OIG, who then investigated the allegations of theft/rifling of mail.2 Based on the result of that investigation, the Complainant was provided her day in court, and her behavior was found to be unacceptable. The AJ found that: Complainant failed to establish similarly situated employees were treated more favorably or provide any evidence the Agency’s explanation for placing her on 2 Based on video evidence, interviews, and admissions of wrongdoing by employees during interviews, seven employees, including Complainant and a supervisor, were determined to be involved in misconduct and mail theft. 2020003459 3 emergency placement and issuing the subsequent Notice of Removal was pretextual. Complainant must come forth with some evidence to raise an inference that the Agency’s actions were based on race, color, sex or age. The record is devoid of such evidence. 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 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 her favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, 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. 2020003459 4 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). 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. 2020003459 5 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 May 20, 2021 Date