[Redacted], Annice F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 2021Appeal No. 2020000840 (E.E.O.C. Mar. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annice F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000840 Hearing Nos. 480201800190X; 480201700841X Agency Nos. 4F926005317, 4F26003516 DECISION On October 18, 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 September 19, 2019 final order concerning her equal employment opportunity (EEO) complaints. She alleged 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to these complaints, Complainant worked as a Carrier (City), Q- 01, at the Agency’s Post Office in Whittier, California. 4F-926-0035-16 / EEOC 480-2018-00190X Complainant made contact with an EEO Counselor on January 4, 2017. On February 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (“Hispanic”), sex (female), disability (injury to knees), age (51), and reprisal for unspecified prior protected EEO activity, 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. 2020000840 2 1. On April 23, 2015, Complainant was issued a Letter of Warning; 2. On May 9, 2015, Complainant was issued a Letter of Warning for unsatisfactory job performance, failure to follow proper safety procedures, and striking a stationary object; 3. On May 22, 2015, Complainant was issued a Letter of Warning for not clocking in; 4. On June 15, 2015, the sequence of her route was changed; 5. On June 16, 2015, Complainant was asked why she had not left yet; 6. On various dates, she was yelled at for requesting copies of the parcel count and 2996 for providing CA-17; 7. On September 30, 2015, she was given a walking route and the mounted route was given to someone else; 8. On various days, including October 21, 2015 and October 27, 2015, she was sent home and told there was no work within her restrictions; 9. On October 10, 2015, she was harassed by the Supervisor when she was accused of not scanning a parcel on the previous day; 10. On October 19, 2015, after requesting help, she was told to continue on her route and she was forced to work thirty minutes of overtime; 11. On October 24, 2015, the Supervisor spoke to her in a disrespectful manner after she informed him that she was unable to climb the flights of stairs on her route; 12. On October 29, 2015, she was issued a Letter of Warning dated October 27, 2015, for “Failure to Scan a Delivery Item as Requested;” 13. On November 2, 2015, she was sent home after she reported that she was unable to climb the stairs on her route; 14. On November 5, 2015, the platform was removed from her case and she was sent home every day after casing the mail; 15. On November 18, 2015, the Supervisor spoke to her in a hostile manner, followed her around, gave her dirty looks, and accused her of climbing up to sit on the ledge of her case; 16. On November 19, 2015, she was sent home, told to provide clarifications of the restrictions on her form CA-17 and told not to return the next day; and 17. On December 2, 2015, Complainant was issued a Seven-Day Suspension, dated November 24, 2015. 4F-926-0053-17 / EEOC No. 480-2017-00841X Complainant made EEO contact again on March 9, 2017. The record shows that the complaint 4F-926-0053-17 was filed on February 11, 2017. The EEO Counselor noted that Complainant made the same or similar claim in case 4F-926-0035-16 regarding her bid assignment and physical accommodation. In her second complaint, Complainant alleged discrimination on the basis of disability (perceived), harassment and retaliation for prior EEO activity, when: 1. From an unspecified date and continuing, Complainant has been demeaned and yelled at; 2020000840 3 2. Since August 26, 2016, Complainant was taken off her bid assignment; 3. On December 29, 2016, Complainant was issued a Seven-Day Suspension; 4. On March 8, 2017, Complainant was issued a Notice of Seven-Day No-Time Off Suspension, dated February 27, 2107; 5. On or around April 21, 2017, Complainant was issued a Letter of Warning, and 6. On or around May 4, 2017, Complainant’s route was changed from curbside delivery to park and loop delivery. On her complaint, Complainant listed her disability as “on-the-job injury.” She suffered an injury in 2015, but she was released to full duty as of July 2016. Complainant says she has no work or personal restrictions and has not had any since July of 2016. On May 4, 2017, Complainant’s route was changed. The Agency reassigned six streets that were curbside delivery and ordered Complainant to deliver the six streets as a “park and loop.” After the completion of the investigations, 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 moved for summary judgment on May 11, 2018. The AJ assigned to the case determined that the complaints did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment on September 6, 2019. 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. This appeal followed. 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). On appeal, Complainant asserts that the AJ erred in entering summary judgment, because the decision, which covered 22 issues, was an inappropriate “trial by affidavit.” She asserts, without elaboration, that a hearing should have been held because there are many material facts in dispute and issues of credibility. 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. 2020000840 4 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 fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2020000840 5 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 March 29, 2021 Date Copy with citationCopy as parenthetical citation