[Redacted], Roxana Y., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (New York Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2020005097 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxana Y.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (New York Metro Area), Agency. Appeal No. 2020005097 Hearing No. 520-2019-00497X Agency No. 4B-110-0018-19 DECISION On September 3, 2020, 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 6, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant was working as a probationary City Carrier Assistant (CCA) at the Agency’s Parkville Station in Brooklyn, New York. Complainant's first level supervisor was the Supervisor (Supervisor) and her second level supervisor was the Manager of Customer Service (Manager). On November 5, 2018, Complainant reported that she was assigned to a certain postal route. Report of Investigation (ROI) at 8. On that date at 6:00 p.m., the Manager sent Complainant assistance from another carrier. Id. 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. 2020005097 2 The carrier informed Complainant that the Manager had stated "that girl is never going to finish" in regard to Complainant. Id. Thereafter, a second carrier was sent to provide assistance. Id. At 7:40 p.m., Complainant and the first carrier returned to the station and began to clean up. Id. At that time, the Supervisor called her to her desk and requested her identification. Id. at 9. According to Complainant, the Supervisor then signed Complainant's termination paper and handed it to her, without explanation. Id. When Complainant inquired as to why she was being terminated, the Supervisor allegedly stated, "I don't know, this is crazy, you're going to have to ask the Manager." Id. The termination letter indicated that Complainant did not meet the CCA requirements. Id. at 68. However, Complainant provided that she was not given any reason for not having met the CCA requirements or which requirements she had not met. Id. Complainant explained that she believed that her national origin was a factor in her termination because she was among several other Hispanic employees that were terminated and discriminated against by the Manager. Id. In support of this statement, Complainant noted two other Hispanic carriers who were terminated within their probationary period and who expressed feelings of discomfort around the Manager. Id. at 69. Complainant also reported that after contacting the EEO Counselor about her termination, she waited weeks for her letter of termination from the EEO Office. Id. at 9. She explained that her house was on a certain mail route, and despite seeing a carrier numerous times and knowing that the carrier as a former coworker, her letter was not delivered. Id. As such, she surmised that the letter was purposely not being delivered to her. The Supervisor explained that Complainant was terminated because she was not able to perform her duties and did not have the urgency to be at work or complete her work. Id. at 81. The Supervisor also stated that she did not tell Complainant to ask the Manager why she was being terminated; the Supervisor explained that Complainant had an attitude and told her that she did not want to accept anything from the Supervisor and refused to sign the termination letter. Id. As to the delivery of Complainant's EEO letter, the Supervisor stated she was not aware of that event. Id. at 86. The Manager explained that Complainant was terminated because she could not perform the job which she was hired to do per the CCA handbook. Id. at 90. He explained that she left first class mail behind, extended her street time, could not follow instructions, and could not strap down a route. Id. In response to Complainant's reports that other employees were also terminated during their probationary periods, the Manager stated that the two employees mentioned were terminated because they could not meet the requirements of the position. Id. at 92. 2020005097 3 On January 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic),2 sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On November 5, 2018, she was terminated from her position as a City Carrier Assistant during her probationary period; and 2. On an unspecified date, mail sent from the Agency's EEO Office, related to Complainant's EEO complaint, was not delivered to her home in the ordinary course of business. 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). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on July 30, 2020. In the AJ's decision, the AJ determined that the record did not support a finding of discrimination. Namely, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for Complainant's termination. As to Complainant's second claim, the AJ noted that Complainant failed to make a prima facie case. In this regard, the AJ found that the fact that Complainant’s EEO letter may have been delayed in arriving to Complainant's home was not tantamount to adverse treatment under a claim of reprisal. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Neither party has submitted argument on appeal. ANALYSIS AND FINDINGS Standard of Review 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 2 Although Complainant also alleged discrimination on the basis of national origin (Hispanic), the Commission notes that it considers the term “Hispanic” to be a national origin rather than a racial group. 2020005097 4 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing 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 a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant submitted an email response opposing summary judgment. Therein, she provided several screen shots from her iPhone of phone calls to the Agency’s Station Hotline as well as a transcribed voicemail. However, we find that in her opposition statement, Complainant has not pointed to any material fact at issue. 2020005097 5 Disparate Treatment - Claim 1 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. Affs. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on national origin and sex, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this regard, the Supervisor explained that Complainant was terminated because she was not able to perform her duties and did not have the urgency to be at work or complete her work. The Manager also provided that Complainant was terminated because she could not perform the job which she was hired to do per the CCA handbook. He elaborated, noting that Complainant left first class mail behind, extended her street time, could not follow instructions, and could not strap down a route. As to the delay in mail sent from the Agency's EEO office, the Supervisor stated explicitly that she was not aware of the event, and the Manager did not provide a statement regarding the event. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant maintains, in pertinent part, that her national origin was a factor in her termination because she was among several other Hispanic employees that were terminated and discriminated against by the Manager. In support of this statement, she pointed to two other Hispanic employees who were terminated during their probationary period. However, the Manager responded that the employees at issue were terminated because they failed to meet the requirements of their jobs. Overall, Complainant has not provided any evidence which shows that the Agency’s nondiscriminatory reasons for her termination were pretext for discrimination. Unlawful Retaliation - Claim 2 We note that Complainant only alleged the basis of reprisal in regard to claim 2 and has not alleged that her mail was delayed due to her national origin or sex. A complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2020005097 6 A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep't of Health and Human Servs., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Regarding her delayed mail claim, we find that Complainant has merely speculated that the delay was due to the submission of her EEO complaint. She has not provided any evidence which shows that the delay was related to her EEO activity, nor that the delay was purposeful. We find that Complainant has not established that she was subjected to unlawful retaliation. Accordingly, we determine that Complainant has not demonstrated that she was subjected to discrimination as alleged in claims 1 and 2. Therefore, we find that the AJ’s decision, and the Agency’s adoption of that decision, to be proper. 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 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. 2020005097 7 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. 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. 2020005097 8 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 March 28, 2022 Date