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

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021005071 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirta L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service Agency. Appeal No. 2021005071 Hearing No. 440-2020-00175X Agency No. 4J-606-0108-19 DECISION On September 10, 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 August 6, 2021 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier, Q- 01, at the Agency’s Chicago Morgan Park Station in Chicago, Illinois. On August 17, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the basis of age (50) when: 1. On March 21, 2019, her manager banged on Complainant’s vehicle and screamed at her; 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. 2021005071 2 2. On March 22, 2019, the manager threatened her with corrective action in front of her co-workers; 3. On May 14, 2019, a co-worker struck her with a vehicle door; 4. On dates to be specified, her clock rings were deleted; 5. On dates to be specified, she was “preliminarily” disciplined; 6. On dates to be specified, she was charged Absent without Leave (AWOL), and 7. On June 25, 2019, a manager took pictures of her and then called the police. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision on July 22, 2021. In the decision, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully 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). 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. Here, however, Complainant has failed to establish such a dispute. We find that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the record showed that the Agency articulated legitimate, non-discriminatory reasons for its actions. Regarding claim (1), Complainant’s manager stated that she banged on Complainant’s car because Complainant did not initially respond when she asked Complainant to open the door. With respect to claim (2), Complainant claimed that there was a stand-up talk with all City Carriers in which they were instructed that police should not be called on supervisors. 2021005071 3 M1 confirmed that she conducted a stand-up talk for all letter carriers to inform them that supervisors had the right to conduct street supervision throughout the day. She maintained that she did not threaten Complainant with discipline during this talk and the talk was for all employees. As to claim (3), Complainant claimed that a co-worker struck her with her Postal vehicle door. Management officials stated that the incident was investigated by the police and fire departments and Complainant’s claims could not be substantiated. M1 noted that Complainant filed a work- related injury claim regarding the incident which was denied. Regarding claim (4), M1 affirmed that Complainant was put in the “1017 disallowed book” and her time entries for the dates in question were deleted because she did not perform any work. With respect to claim (5), Complainant claimed that she was given a pre-disciplinary interview on three occasions in March and May 2019. Management officials could not recall conducting these interviews but noted that Complainant was not issued discipline. As to claim (6), M1 explained that Complainant was charged AWOL because her leave request was spread over two pay periods and she did not submit two separate requests. This resulted in M1 mistakenly charging Complainant with AWOL on the day in question because she believed that Complainant was scheduled to work that day. The AWOL charge was later changed to annual leave. Finally, regarding claim (7), M1 asserted that she took pictures of Complainant because the she wanted evidence of Complainant sitting on the docks for several minutes, not performing work in case further action needed to be taken. Management determined the actions were warranted based on Complainant’s conduct. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide sufficient evidence that the named management officials in this matter harbored discriminatory animus. 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, for the reasons stated here, 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 2021005071 4 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. 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. 2021005071 5 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 16, 2022 Date