[Redacted], Serita B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022001380 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Serita B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022001380 Hearing No. 430-2021-00133X Agency No. 4K-290-0098-20 DECISION On December 17, 2021, 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 December 2, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Labor Relations Specialist, EAS-19, in Columbia, South Carolina. On August 27, 2020, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on her race (African American), disability (acute stress disorder, generalized anxiety disorder, and major depressive disorder), and in reprisal for prior protected EEO activity (Agency No. 4K-290-0002-18) 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. 2022001380 2 1. On or around June 27, 2020, her request for 80 hours of Family & Medical Leave Act (FMLA) was denied and she was charged with being absent without leave (AWOL). 2. On or around June 27, 2020, she became aware that her computer and workstation were disabled. 3. On or around June 30, 2020, “the Agency’s disabling of Complainant’s computer and work station, and her inability to access her work site gave Complainant the impression that she had been removed from her position.”2 After an investigation into the complaint, 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 Agency filed a September 21, 2021 motion for a decision without a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency on November 16, 2021. The Agency subsequently issued a final order adopting the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 2 According to Complainant’s attorney in their opposition to the Agency’s motion for summary judgment, this was the correct definition of claim 3 as modified at a status conference with the EEOC Administrative Judge. 2022001380 3 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 for Complainant. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990): Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Complainant has alleged that her supervisor (Caucasian) denied her request for FMLA leave and coded her AWOL, disabled her “computer and workstation,” and led her to believe she had been “removed” from her job due to her race and disabilities. She also alleged that the supervisor did so at the direction of the Human Resources Manager (African American), who was allegedly retaliating against Complainant for an EEO complaint she had filed against the manager five years earlier over a non-selection.3 After careful review of the evidence of record, we find that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed matters. 3 The case closed on July 5, 2018, two years prior to the events at issue, with a finding of no discrimination. 2022001380 4 Regarding claim 1, concerning Complainant’s request for 80 hours of FMLA leave, Complainant’s supervisor explained that nowhere on the leave slip which Complainant sent him via email late at night did she inform him that she was requesting leave under the FMLA. Under “Type of Absence,” Complainant put an X next to the box titled “Other,” and entered the words “Fed COVID-19.” Based on this leave slip, the supervisor said he believed Complainant was requesting emergency paid sick leave pursuant to the Families First Coronavirus Response Act (FFCRA), which allows up to 80 hours of emergency paid leave. Management witnesses explained that subsequently Complainant’s leave request was denied because the request did not meet any of six qualifying reasons needed for approval under the FFCRA. In the denial letter to Complainant, Complainant was advised that if she believed she qualified for leave under any of the qualifying reasons, that she could provide that information directly to the Agency’s Occupational Health Nurse Administrator for reconsideration. As a result of the denial of Complainant’s FFCRA leave, the supervisor coded the first week of her absence (excluding eight hours of approved annual leave for June 15) as AWOL. The record also shows that on June 29, 2020, the supervisor reviewed an updated/revised leave slip that Complainant had submitted the previous day,4 and he approved the leave slip and recoded her previously approved eight hours of annual leave and thirty-two hours of AWOL to eighty hours of paid sick leave. To the extent that claim 1 was an allegation of disparate treatment, we conclude that the AJ’s decision is fully supported that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered by management were a pretext designed to mask a discriminatory or retaliatory motivation for the disputed actions. Harassment/Hostile Work Environment To the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her raised based - in this case, her race, disability and/or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. As we have already found no evidence of discrimination or retaliatory motivation in the leave issue described in claim 1, we will not consider it further as part of the harassment claim. 4 The new leave slip indicated Complainant had to fly to tend to her hospitalized mother and then care for her after she was discharged. 2022001380 5 Regarding allegation 2, management witnesses stated that as a result of Complainant being initially coded in the timekeeping system as AWOL, her access to her computer was automatically suspended. Management witnesses explained that the safeguards were put in place by the Agency’s IT Department to protect the Agency’s technology infrastructure. Complainant also alleged that she was denied access to her work site because her badge no longer allowed her entry when she tried to come in after hours. With regard to the badge issue, management witnesses explained that Complainant’s badge did not operate because she had failed to use the badge to exit from the same location that she had entered the building. Due to a general security measure at the facility, her badge would not work because her entry and exit were “out of sync”. In order to restore her access, she had needed to exit from the same place she had entered. Regarding allegation 3, during a deposition taken of Complainant, she admitted that there was no proposed removal or notice of removal, no administrative interview, and that no one told her of any plans to terminate her employment. Instead, it appears that Complainant was simply under the “impression” that she was being terminated due to the suspension of her access to her computer, the fact that she was unable to access the building with her badge. However, Complainant’s impression was incorrect. In sum, Complainant again, beyond her own bare assertions, provided inadequate evidence to support her claim that her treatment was the result of her race, disability, and/or prior EEO activity. Her claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order fully implementing the AJ’s summary judgement decision finding no discrimination or unlawful retaliation. 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. 2022001380 6 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. 2022001380 7 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 March 13, 2023 Date