[Redacted], Susie K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Oct 5, 2022

Appeal No. 2022004300 (E.E.O.C. Oct. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2022004300 Hearing No. 520-2021-00153X Agency No. 1B-112-0013-20 DECISION On August 9, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 13, 2022 final action 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 the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq. (“ADEA”). BACKGROUND During the relevant time, Complainant worked as a Supervisor, Distribution Operations, at the Agency’s Brooklyn Processing and Distribution Operations in Brooklyn, New York. On August 7, 2020, Complainant filed a formal complaint, as later amended, alleging that the Agency subjected her to unlawful retaliation for engaging in prior EEO activity under Title VII and the ADEA (previous EEO complaints filed in July 2004 and September 2019) 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. 2022004300 2 1. The last week of April through the first week of May 2020, her name was left off the supervisors’ schedule and she had to report to the office to be assigned an operation; 2. On May 13, 2020 and ongoing, her name was removed from the schedule and she was told that she was not needed to work on her 6th day; and 3. On unspecified dates, she was not allowed to report early or stay after her tour in order to work “T-time” unlike other supervisors. After its investigation, 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 timely requested a hearing. Following the review of the Report of Investigation and the parties’ NOI responses, the AJ determined that the record was sufficiently developed to support a decision by summary judgment in favor of the Agency, concluding no lawful retaliation was established. The Agency issued its final action adopting the AJ’s decision. The instant appeal followed. 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). 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. 2022004300 3 Complainant was employed as a Supervisor, Distribution Operations on Tour 3 and she reported to the Manager, Distribution Operations (MDO1) and another Manager, Distribution Operations (MDO2). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. Regarding claim 1, Complainant alleged that from the last week of April through the first week of May 2020, her name was left off the supervisors’ schedule. Complainant had to report to the office to be assigned an operation. MDO1 and MDO2 worked in the Mailing Division Office. The Mailing Division Office is where Complainant would customarily “sign in” her attendance at work. The record reflects that scheduling is done weekly based on operational need. Complainant informed MDO1 that her name was not on the schedule and MDO1 responded that her name was omitted in error. MDO1 stated it was a one-time event for which she took full responsibility and apologized to Complainant. Regarding claim 2, Complainant asserted that on May 13, 2020 and ongoing, she was told she was not needed to work on her formerly scheduled sixth day. The MDO1 explained that during the COVID-19 pandemic, supervisors (including Complainant) began working a sixth day per week when required due to operational needs. Complainant worked a sixth day work requirement in May 2020, June 2020, and July 2020, based on operational needs. When Complainant was not scheduled to work a sixth day, it was because of the MDO2’s managerial determination that operational need did not require it. Regarding claim 3, Complainant alleged that on unspecified dates, she was not allowed to report early or stay after her tour in order to work “T-time” unlike other supervisors. The record reflects that “T-Time” is straight time that supervisors work after their regular eight hours has been reached. MDO1 was responsible for scheduling Tour 3 supervisors to either report early or stay after tour. She said she did not schedule Complainant because her work area did not have overtime needs that required supervision. MDO1 said other Tour 3 supervisors supervised areas that she perceived required overtime for early or later supervision. MDO1 noted that, at that time, Complainant could not be assigned for T-time for operations that she was not trained on the Flat Sequencing (FSS), Parcel Post, High Speed Tray Sorting (HSTS), Inbound, Outbound, Auto Induction (AI), Automated Package Processing System (APPS), and Automated Parcel Bundle Sorter (APBS). On all three issues, the AJ concluded that, despite Complainant having engaged in protected EEO complaint activity less than a year prior to the events at issue, the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions which Complainant failed to prove, by a preponderance of the evidence, were a pretext masking any unlawful retaliatory motivation. 2022004300 4 CONCLUSION 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 retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s summary judgment decision finding no 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. 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. 2022004300 5 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 October 5, 2022 Date