[Redacted], Minna Z., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 6, 2022

Appeal No. 2022000225 (E.E.O.C. Jan. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minna Z.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000225 Hearing No. 443-2019-00102X Agency No. 4E-500-0013-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 22, 2021 final order concerning her 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Letter Carrier, Q-01, at its Des Moines - University Station, Des Moines, Iowa. On April 6, 2018, Complainant filed a formal complaint, which was amended, alleging discrimination based on race (Caucasian), sex (female), age (over 40), disability (irritable bowel 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. 2022000225 2 syndrome, anxiety/depression, post-traumatic stress syndrome), and in reprisal for prior EEO activity when: 1. Beginning in September 2017, and ongoing, management makes remarks to her such as "There is something wrong with you" or What is wrong with your head?"; 2. From October 2017, through the present management performs excessive street observations on her and does not provide her with any of the accompanying paperwork; 3. Multiple times in November 2017, and ongoing, her supervisor followed her to the restroom and waited for her to exit and then questioned why it took her so long; 4. On September 22, November 29, 2017, and ongoing, management singled her out by giving her specific instructions regarding work procedures; 5. Beginning in September 2017, and ongoing, she has been subjected to multiple investigative interviews; 6. On November 28, 2017, she was issued a LOW (Letter of Warning); 7. On December 8, 2017, she was accused of "cussing out" the station manager and subsequently was given several investigative interviews and issued a 7-Day (No Time Off) Suspension dated January 17, 2018; 8. On January 3, 2018, the station manager did not accept her work restrictions; 9. On January 3, 2018, a 204B Supervisor blocked her in her case and subsequently she received notice that she was being placed in an off duty-without pay/removal status; 10. From January 23, 2018, to the present, her supervisors refuse to fill out their portions of CA-1/CA-2 forms; 11. On February 28, 2018, a supervisor blocked her in her case and refused to let her leave; 12. She received three investigative interviews regarding events occurring on March 1, 2018, and subsequently was issued a 14-Day (No Time Off) Suspension dated March 21, 2018; 13. On February 5, 2018, she was given a direct order that she could not leave her case and later that day she believes her manager recorded her with his cell phone; 14. On April 18, 2018, she was given an investigative interview regarding FMLA (Family and Medical Leave Act) sick leave which resulted in a 14-Day (No Time Off) Suspension dated April 30, 2018; 15. On April 4, 2018, and various other dates, she was given a direct order to stay at her case and was told that she was not allowed to speak to other carriers or clerks; 16. On April 20, 2018, her manager performed an office observation on her and provided the results to her on April 27, 2018; 17. On May 4-5, 2018, she received notices of "Observation of Work Practices" which stated she was observed performing "unsafe behavior;" 18. On May 10, 2018, management denied that she had any valid medical restrictions on file and attempted to force her to work overtime; 19. On or about May 15, 2018, management disclosed her private medical information to a third party without permission; 20. On May 24-26, 2018, she was singled out regarding using the Station as a comfort stop and subsequently on May 30, 2018, management said she would be informed as to where she would be allowed to use the restroom and then proceeded to stand behind her as she finished casing her route; 2022000225 3 21. On May 30, 2018, every other Veteran in her office was personally thanked for their service, however, management waited until she was on break and placed her medal and letter on her case; 22. On June 8, 2018, her supervisor placed her on Administrative Leave and advised that he would be putting her in for a removal; 23. On July 3, 2018, she was issued a Notice of Removal; 24. On September 29, 2018, management would not allow her to fuel her vehicle; 25. On October 30, 2018, her case was relocated in front of the supervisor's desk; 26. On dates to be specified, management laughed at her, yelled at her, took pictures of her in her work area, told her that she cannot communicate with other workers and told her that she was not allowed to ask questions or use the office restroom; 27. On a date to be specified, management entered her time as LWOP (Leave Without Pay) and refused to pay her; and 28. On November 23, 2018, she was issued a LOW. Complainant does not challenge the framing of the claims. After its investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant failed to show that any of the discrete actions were motivated by discrimination. Specifically, the AJ stated that management issued Complainant the LOWs, the suspensions, and the July 3, 2018 notice of removal, described in claims 6, 7, 12, 14, 23, and 28, due to her deficient performance. Complainant acknowledged that these actions were subsequently resolved and rescinded during the grievance process. The AJ further found that Complainant failed to show that she was treated differently than other similarly situated employees regarding the incidents. Management indicated that supervisors conducted investigative interviews on employees, including Complainant, regarding work performances and conduct. Regarding Complainant’s retaliation claims, the AJ found that Complainant failed to establish there was any casual connection between the disciplinary actions and her prior EEO activity. Regarding her harassment claim, considering all the events, the AJ found that the alleged incidents were not related to any protected basis. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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. 2022000225 4 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 fact-finder could not find in Complainant’s favor. 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 discriminated against by the Agency as alleged. CONCLUSION 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). 2022000225 5 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. 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. 2022000225 6 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 January 6, 2022 Date