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

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2021005290 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zoey T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021005290 Hearing No. 440-2021-00084X Agency No. 1J-607-0025-20 DECISION Complainant filed a timely appeal, 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 Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic, PS-07, at the Agency’s Busse Processing and Distribution Center in Elk Grove Village, Illinois. On May 6, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), disability (Depression, Anxiety, and Post-Traumatic Stress Disorder), and in reprisal for prior protected EEO activity when: (1) on or around December 2, 2019, Complainant was notified that she would be reassigned, and was never provided a copy of all available jobs in accordance with the union contract; and (2) on January 8, 2020, Complainant was issued a 14-Day Suspension. 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. 2021005290 2 After its investigation into the complaint, 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. On January 11, 2021, the AJ initially assigned to the matter (AJ1) and the parties participated in an Initial Conference. In an Order issued that day, AJ1 noted that Complainant requested to receive all correspondence via U.S. Mail, and not email, but that because the COVID-19 pandemic, the EEOC’s employees were not regularly in the office. AJ1 informed Complainant that communications would be conducted via email and that she would make every attempt to call Complainant whenever she sent an email. The Agency also objected to Complainant’s request and agreed to call Complainant every time the Agency sent an email with the exception of due dates articulated in the Order. Accordingly, AJ1 denied Complainant’s request. AJ1 subsequently retired and the matter was transferred to AJ2 on June 21, 2021. AJ2 subsequently issued a summary judgment decision in favor of the Agency. In the decision, AJ2 noted, again, that Complainant had not shown good cause for her demand that she receive hard copies of all correspondence. Next, AJ2 found that Agency management had articulated legitimate, nondiscriminatory reasons for its actions. As to Claim (1), based on Headquarters’ documentation the Busse facility was overstaffed in Complainant’s job title. Of the individuals within her facility holding the same position, Complainant was the least senior and therefore received the notice of possible involuntary reassignment. Regarding Claim (2), the Agency explained that Complainant was suspended because she had multiple unscheduled leave without pay absences and did not provide sufficient documentation. AJ2 found that Complainant failed to show that Agency management’s reasons for its actions were pretextual. As a result, AJ2 found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency issued its final order fully adopting AJ2’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant bases her appeal entirely on the AJ’s denial of her request to litigate her case via U.S. Mail. Complainant argues that she did not provide consent for the Agency or the AJ to contact her via email. Further, Complainant asserts that she needed to litigate via U.S. Mail as a reasonable accommodation. ANALYSIS AND FINDINGS As an initial matter, we will address Complainant contentions regarding the AJ’s denial of her request to receive communications via U.S. Mail. The record reveals that Complainant noted on the hearing request form in the section related to requesting a reasonable accommodation during the hearing process that she wished to receive hard copies of all communications, including no CDs and no emails. There is no evidence demonstrating that Complainant provided any other information or support related to her request other than her stated personal preference. 2021005290 3 AJ1 adequately explained that email communication was the most efficient manner of litigating this case especially in light of the COVID-19 pandemic and the Commission’s telework status. AJ1 further offered to call Complainant to alert her of an email as an alternative. Complainant declined and insisted on only receiving hard copies of communications. AJ2 subsequently concurred with AJ1 that Complainant had not shown sufficient good cause demonstrating a need to communicate only through mail or to otherwise deviate from the original order. We note that AJs have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S v. Dep't of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The Commission has reviewed the record and finds no abuse of discretion by the AJs. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJs managed this case. Turning to the merits of the instant matter, 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 to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021005290 4 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. 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). 2021005290 5 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 April 11, 2022 Date