[Redacted], Britany C, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2021004537 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Britany C,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021004537 Hearing No. 480-2021-00031X Agency No. 4F-926-0123-20 DECISION On August 6, 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 July 1, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 City Carrier at the Agency’s Post Office in La Verne, California. Complainant has physical disability (Back/Neck/Right Shoulder/Right Elbow/Left Knee). Report of Investigation (ROI) at 143. She has engaged in prior EEO activity having filed at least three prior recent EEO complaints, alleging in each that she was subjected to retaliation and a hostile work environment. ROI at 142. 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. 2 2021004537 On April 22, 2020, the Station Supervisor, Customer Services (Station Supervisor) saw Complainant approach the front of his desk and stand on a yellow cart to reach over his desk to reach a face mask on the cart adjacent to him. Station Supervisor asked Complainant to get off the cart to prevent injuries as it could roll away. Station Supervisor believed Complainant could have walked around or asked him to get the face mask. Station Supervisor filled out a form documenting his observations, noting Complainant’s failure to follow the personal care category, “Does not jump, stand, ride over or on equipment, unless equipment is designed for that use.” ROI at 97. On April 23, 2020, the Agency provided Complainant an investigative interview. She admitted to putting one foot on the pushcart, asking for the mask, and claiming she did not want to get close to Station Supervisor due to social distancing. ROI at 95-6. Complainant had also not checked whether the cart had wheels, admitting she could have put herself in danger. ROI at 96. Complainant however did not believe her conduct was unsafe based on the conditions of the pushcart. Id. On April 27, 2020, Station Supervisor issued Complainant a Letter of Warning, charging her for Failure to Observe Safety Rules and Regulations; and Failure to Work in a Safe Manner. ROI at 63-4. On July 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical/multiple) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On April 29, 2020, Complainant was issued a Letter of Warning dated April 27, 2020, for Failure to Observe Safety Rules and Regulations and Failure to Work in a Safe Manner. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After reviewing the record, the AJ assigned to the case determined that the complaint may be appropriate for summary disposition in favor of the Agency. In a February 17, 2021 order, the AJ provided instructions for filing a pre-discovery motion for summary judgment. On March 10, 2021, the Agency filed a motion for a decision without a hearing. On March 25, 2021, Complainant filed a response (Response). On March 29, 2021, the Agency filed a reply. The AJ issued a decision without a hearing on June 21, 2021. Having read the ROI and the parties’ briefing, the AJ determined that the investigative record had been adequately developed. After making all reasonable inferences in favor of Complainant, the AJ found that there were no material facts in dispute regarding the complaint. The AJ granted the Agency’s motion because the evidence in the record was insufficient for Complainant to prove the complaint. 3 2021004537 The AJ assumed that Complainant was a member of the alleged protected classes. The AJ determined that Complainant was unable to establish that the stated reason for the challenged action was pretext for discrimination or otherwise tainted by any EEO-protected consideration by preponderant evidence. According to the AJ, while Complainant contended that she did not act in an unsafe manner, she did not cast doubt on Station Supervisor’s belief that Complainant acted in a safe manner. Citing to Commission precedent, the AJ asserted that at issue was “whether [Station Supervisor] had a reasonable basis” for his asserted observations and “believing the accusations by the [witnesses] were true.” The AJ noted record evidence supporting Station Supervisor’s belief. For example, observed the AJ, an identified witness also observed Complainant “standing on top of a yellow piece of equipment used to move mail throughout the [Post Office]. She was on top of it and leaning forward trying to talk to [Station Supervisor].” ROI at 102. A second identified witness added during his investigative interview that he saw Complainant step on the pushing cart to grab a face mask but could have gone around. ROI at 98-9. The AJ did not find evidence that Station Supervisor harbored any animus against Complainant. According to the AJ, Station Supervisor was not the named responsible management official in Complainant’s prior EEO activity, and Complainant’s subjective belief was insufficient to establish retaliatory animus. The AJ stated that Station Supervisor’s mere knowledge of Complainant’s medical limitations did not establish animus based on disability or retaliation. The AJ found that Complainant failed to identify any comparatives from which to infer an EEO- prohibited motive. On the other hand, observed the AJ, Station Supervisor had issued discipline to individuals outside Complainant’s protected class for similar violations of generally applicable safety rules. ROI at 73 and 103-28. Citing to Commission compliance manual and precedent, the AJ also found that Complainant did not allege any abusive conduct or language sufficiently severe or pervasive to meet the objective requirements of hostility.2 Therefore, asserted the AJ, Complainant was unable to establish an EEO violation regarding this claim. 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. 2 The AJ noted that Complainant’s response argued that this case should be analyzed as part of a hostile work environment. Accordingly, the AJ analyzed Complainant’s accepted claim under that theory. The AJ also noted Complainant’s statement that her prior complaints demonstrated a continuing hostile work environment. According to the AJ, Complainant did not produce evidence of the processing status of those claims or their disposition such that inclusion for analysis in this complaint would be appropriate. Therefore, the AJ limited the complaint and decision to the accepted issue, though analyzed under multiple theories of liability. 4 2021004537 CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations and contests the AJ’s decision, asserting that discovery was not permitted. She asserts that this complaint is a continuation of her claims of a hostile work environment and should not have been excluded as an issue. Complainant also asserts that the AJ assumed facts not in evidence and denies admitting the factual accuracy of Station Supervisor’s statement of her alleged conduct. According to Complainant, whether she stood on top of the cart with both feet, as alleged by Station Supervisor or pushed it away with one foot, as alleged by Complainant, is a dispute of material fact that should have precluded a summary disposition. She argues that this dispute requires credibility determinations and should not be decided by favoring one affidavit over another. The Agency did not submit an appeal brief. 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. (Aug. 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. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 5 2021004537 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). 6 2021004537 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 September 19, 2022 Date