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

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2021002094 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dorathy M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002094 Hearing No. 48--2018-00036X Agency No. 4F-900-0069-17 DECISION 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 January 21, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Carrier Technician at the Agency’s Carrier Annex in Venice, California. On March 23, 2017, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against her based on race (African-American), sex (female), and in reprisal for prior protected EEO activity (prior EEO cases).2 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 The record reflects that Complainant withdrew the bases of race and sex when this matter was before an EEOC Administrative Judge. 2021002094 2 By letter dated May 12, 2017, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. On November 18, 2016, [Complainant was] issued a Letter of Warning; 2. On November 25, 2016, [Complainant was] put on Emergency Placement in an Off- Duty Status for delaying mail and abandonment of [her] assignment; 3. On December 22, 2016, [Complainant was] put on Emergency Placement in an Off- Duty Status for refusing to perform an unsafe act. 4. On December 22, 2016, and other dates, a named Acting Supervisor [AS] followed [her] into the restroom; 5. On or about March 27, 2017, [Complainant was] given an investigative interview related to [her] attendance and instructed to provide medical documentation; 6. On March 27, [Complainant was] not instructed not to move furniture in the office; 7. [Complainant] felt threatened on March 28, 2017, when the Postmaster told [her] that this was her office and that she fired the union steward in her previous office; 8. On an unspecified date, the Postmaster instructed [her] not to talk to employees unless [she was] on union time; 9. On an unspecified date, [Complainant was] instructed not to post documents in the union office; 10. On April 5, 2017, [Complainant was] issued a Notice of Seven-Day Time Off Suspension for Failure to Follow Instructions; 11. On April 20, 2017, [Complainant was] issued an Emergency Placement in an Off- Duty Status. After an 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 assigned AJ granted the Agency’s March 5, 2018 motion for a decision without a hearing (Agency’s Motion) and issued a decision without a hearing on January 15, 2021.3 3 Complainant filed a response to the Agency’s Motion. The Agency also filed a Supplemental Motion and Complainant filed a response to the Supplemental Motion. 2021002094 3 In his decision, the AJ found that Complainant did not establish a prima facie case of retaliation with respect to claims (1)-(4), (10)-(11). AJ Decision at 9-10. Specifically, the AJ found that Complainant did not establish that the management officials involved in these alleged incidents were aware of Complainant’s past EEO activity prior to the alleged incidents. Regarding incidents (5)-(9), the AJ found that the named Postmaster involved in these alleged incidents did not submit an affidavit thus there is no evidence that the Postmaster did not know of Complainant’s prior EEO activity. AJ Decision at 10. The AJ, however, found that these matters were not reasonably likely to deter Complainant or others from engaging in protected activity and that Complainant did not present evidence that Complainant’s prior EEO activity was the basis for the Postmaster’s actions. Id. 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. Complainant filed the instant appeal. On appeal, Complainant references an exhibit attached to her response to the Agency’s Motion. She asserts that the AJ ignored this exhibit with respect to whether Agency Managers were aware of her prior EEO activity. ANALYSIS AND FINDINGS 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 2021002094 4 The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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 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. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The AJ properly found that Complainant did not establish a prima facie case of reprisal with respect to claims (1)-(4), (10)-(11). The record reflects that the managers involved in these alleged incidents expressly asserted, in their affidavits, that they were not aware of Complainant’s prior protected EEO activity. Report of Investigation (ROI) at 211, 231, 325, 361. In addition, the record is devoid of evidence that these Agency officials were aware of Complainant’s protected EEO activity prior to the alleged incidents set forth in claims (1)-(4), (10)-(11). Complainant, on appeal, asserts that the AJ did not consider one of her exhibits which she states reflects that Agency officials were aware of her protected activity. We determine, however, that the exhibit at issue does not reflect that the Agency officials involved in claims (1)-(4), (10)-(11) were aware of Complainant’s prior protected EEO activity. 2021002094 5 The exhibit at issue is a signed statement from Complainant that she filed numerous EEO complaints over the preceding few years and that supervisors were aware of her past EEO activity because she would not hesitate to let them know that that “[she] filed EEOs in the past and [she] would file one against them if they thought they were [going] to treat [her] differently from [her] co-workers.” Complainant further asserted in this statement that she would request time to meet with her EEO representative. We find that Complainant’s generalized statement is not sufficient to establish that the officials at issue in claims (1)-(4), (10)-(11) were aware of her past EEO activity prior to the alleged incidents. Complainant does not provide any details such as names of officials or dates in which she had the alleged conversations regarding her past EEO activity. In addition, she does not provide any documentation that the managers involved in claims (1)-(4), (10), (11) were aware of her protected activity prior to the events at issue. We further find that the AJ properly found that Complainant did not establish that the actions set forth in claims (5)-(9) were based on protected EEO activity. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate, nondiscriminatory reasons for its actions for claims (5)-(9). Regarding claim (5), an investigative interview, the Postmaster asserted in the EEO Counselor’s Report that an investigative interview was conducted due to Complainant calling in and requesting leave, and her records indicating that she had a number of unscheduled absences. Report of Investigation (ROI) at 11. 2021002094 6 Regarding claim (7), the Postmaster’s comments that she had fired a union steward from her prior office, the Postmaster, according to the EEO Counselor’s Report asserted that the Postmaster made the comment in response to Complainant making a statement that she had gotten rid of many Postmasters and managers that came through the Venice Office and that she was going to get rid of the Postmaster at issue here as well. Id. Regarding claim (8), the Postmaster instructing Complainant not to talk to employees unless on union time, the Postmaster, according to the EEO Counselor’s Report, asserted that she observed carriers gathered around Complainant’s case having a conversation instead of casing the mail and that she instructed them not to discuss union business unless on union time. Id. Regarding claim (9), the Postmaster telling Complainant to take a particular union document down from the office, the Postmaster, according to the EEO Counselor’s report, stated the document contained an inappropriate remark. Id. We further find that Complainant failed to establish that these articulated reasons were pretext for retaliation. Finally, Regarding claim (6), that Complainant was instructed by the Postmaster not to move furniture around the office, we find that this matter is not reasonably likely to deter Complainant or others from engaging in protected activity and thus does not meet the standard of reprisal. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing 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). 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 2021002094 7 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. 2021002094 8 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 February 9, 2022 Date