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

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022000176 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sara I.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000176 Hearing No. 450-2019-00183X Agency No. 4G-760-0088-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008, 42 U.S.C. § 2000ff et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e 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 Rural Carrier at the Agency’s Acton Station in Granbury, Texas. On October 9, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination based on her genetic information (as to claims 1 and 2) and retaliatory harassment based on her prior protected EEO activity (as to claim 3) 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. 2022000176 2 1. Since on or about January 5, 2018, to present, and after the route count and adjustment, she has not been paid correctly for working her route; 2. From April 25, 2018, to present, she has not been paid for overtime and/or holiday work;2 and 3. On December 14, 2018, her request for package assistance on her route was denied. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a Notice of Proposed Summary Judgment. After Complainant failed to object to the Notice within the required timeframe, the AJ issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ concluded that for claims 1 and 2, in which Complainant alleged she had been discriminated against under GINA, Complainant failed to establish a prima facie case because she did not allege any facts related to the basis of genetic information. The AJ reasoned that in her affidavit, Complainant’s responses did not address genetic information, nor did Complainant allege that management was motivated by genetic information or otherwise used genetic information as a basis for its actions. Regarding claim 3, the AJ found that, on December 14, 2018, Complainant requested package assistance from one of her supervisors, Supervisor Customer Service, who denied the request. The supervisor explained that Complainant had already received some help that day but was requesting additional help even though she had only one additional parcel that met the requirements for additional assistance. The supervisor averred that that package was taken away from Complainant and therefore did not need to be delivered that day. The supervisor also stated that the other packages for which Complainant requested assistance did not meet the applicable criteria, which included the fact that Complainant’s vehicle could accommodate the volume, she was not at risk of missing the mail truck, and that the day’s volume did not merit additional assistance. Based on this, the AJ concluded that the Agency had provided legitimate, nondiscriminatory reasons for denying Complainant’s request for additional package assistance on the day in question that Complainant had failed to rebut as pretext for retaliation. 2 In her affidavit in the report of investigation, Complainant crossed out and initialed the word “holiday” in the definition of this claim. We therefore find that Complainant’s claim does not include allegations regarding holiday hours. 2022000176 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the nonmoving 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, at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an AJ’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 retaliatory animus. Here, however, as discussed below, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. With respect to claims 1 and 2, Complainant alleged discrimination based on genetic information in violation of GINA, which prohibits employers from discriminating against any employee because of genetic information with respect to the employee. The AJ found no genetic information discrimination. On appeal, Complainant states that she never intended to pursue a genetic information claim. We therefore find claims 1and 2 are not at issue and will only consider claim 3, which alleges reprisal as the sole basis. To establish a claim of harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). With regard to claims of retaliatory harassment, the Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). 2022000176 4 Complainant has failed to provide evidence that her supervisor denied her assistance based on her prior protected EEO activity. On appeal, Complainant submits statements from several coworkers who claim generally that she was not given package assistance when needed, which the coworkers opine constituted unfair treatment, though none state that this treatment was based on Complainant’s protected characteristics, namely her prior protected EEO activity. The letters therefore do not create a genuine dispute of material fact as to whether the Agency retaliated against Complainant. After a review of the record, we find that Complainant failed to raise a genuine dispute of material fact that the supervisor’s reasons for denying her package assistance on the day in question were based on retaliatory motive.3 We therefore find she fails to establish a claim of retaliatory harassment. 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 fully implementing the AJ’s decision finding no discrimination. 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). 3 In her brief on appeal, Complainant appears to state for the first time that the refusal of assistance with her packages was in fact a denial of a reasonable accommodation. Because Complainant did not allege that the Agency denied her a reasonable accommodation until this appeal, we do not consider the reasonable accommodation claim herein. 2022000176 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. 2022000176 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 December 12, 2022 Date