[Redacted], Gia M, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2021003758 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gia M,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021003758 Hearing No. 470-2014-00160X Agency No. 4J-460-0004-14 DECISION On June 9, 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 May 6, 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. and 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 Carrier (City) at the Agency’s Hammond Post Office in Highland, Indiana. Complainant has been employed by the Postal Service since 1994. Report of Investigation (ROI) at 98. A Postmaster (the Postmaster) oversaw 4 branch offices, including the Hammond-Highland Branch. 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 2021003758 In addition to her regular duties as Postmaster, when the Highland Branch was short on supervisory and management staff, as it was in 2013 and 2014, the Postmaster assisted in managing it on an as-needed basis. On the days she assisted at Highland, she indirectly supervised Complainant. ROI at 88. Complainant was over the age of 40 (DOB 2/9/1956). ROI at 98. The Postmaster was generally aware of Complainant’s age. ROI at 88. Complainant had engaged in prior EEO activity having filed formal EEO complaints, including one filed on March 11, 2013. ROI at 54. The Postmaster became aware of Complainant’s prior EEO activity when she granted Complainant’s request for EEO official time to work on the complaint filed on March 11, 2013. ROI at 81, 88, and 128. Complainant also had cervical disc disease, a disabling condition; and she had medical restrictions which affected her ability to perform carrier duties. ROI at 52-3. The Postmaster did not know what Complainant’s medical restrictions were and did not know whether she was able to perform her duties. ROI at 88. Management asked Complainant to provide a copy of her medical restrictions several times, but she never did so. Instead, she would tell the supervisor what she could not do, and he would adjust the route depending on what he was told. Id. On Friday, August 23, 2013, Complainant submitted a request for a temporary schedule change to move her next scheduled day off from August 29, 2013 to Monday, August 26, 2013. The Postmaster denied the request. See ROI at 89. On Monday, August 26, 2013, Complainant called in sick. ROI at 54. On August 27, 2013, Complainant called in sick and requested 72 hours (9 days) of Family and Medical Leave Act (FMLA) sick leave beginning on August 27, 2013. Id. After Complainant called in sick for August 26, 27 and subsequent days, the Postmaster marked Complainant’s form requesting sick leave “DOC REQ” meaning documentation was requested. The Postmaster charged Complainant Leave Without Pay (LWOP) for the period August 31, 2013, through September 5, 2013, because no documentation was provided, and the pay period closed so the adjustment could not be made. ROI at 89. Applicable sections of the Employee Labor Manual (ELM) state that employees must provide acceptable evidence for absences when required. ROI at 159. The ELM further states that a supervisor may also require an employee to provide documentation if the supervisor deems it desirable for the protection of the interests of the Postal Service. ROI at 160. Additionally, for absences in excess of 3 days, employees are required to submit medical documentation or other acceptable evidence of incapacity for work. Id. If acceptable substantiation of incapacitation is not furnished, the absence may be charged to annual leave. ROI at 161. Consistent with the applicable ELM sections, an employee requesting FMLA-covered time off must satisfy the documentation requirements for sick leave in order to receive paid leave during the absence. ROI at 165. Complainant identified a coworker (Coworker 1) as a comparator. She also named, without elaboration, three other coworker comparators as non-disabled employees who had not engaged in prior EEO activity, and who she believed were treated more favorably than she was under similar circumstances. ROI at 55-6. 3 2021003758 According to the Postmaster, one of the comparators was unable to carry his route due to a foot injury; the second comparator had surgery; and the Postmaster was unaware of the circumstances for the remaining comparators. ROI at 93. Three of the comparators have no prior EEO activity. See ROI at 140-43 and 146-49. One comparator had filed a prior EEO complaint. ROI at 144-45. Complainant believed that Coworker 1 was a city carrier under the age of 40 whose sick leave was not changed to LWOP when she used FMLA protected leave for her absence. ROI at 55. Complainant believed that the Postmaster’s action was due to her disability because her medical condition was the reason for requesting FMLA leave. Id. Complainant also pointed to the Postmaster’s knowledge of her prior EEO activity as reason for the Postmaster’s action. ROI at 56. Complainant however admitted the responsible management official (RMO) in her prior case was not the Postmaster. Id. On December 10, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical), age (57), and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 and Section 501 of the Rehabilitation Act of 1973 when: 1. On September 13, 2013, Complainant became aware that her postmaster had charged her forty hours of leave without pay instead of the sick leave she had requested from August 31, 2013 through September 5, 2013. The Agency accepted the complaint for investigation. 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. Both parties had the opportunity to engage in discovery. On October 8, 2014, the Agency filed a motion for summary judgment (Agency Mot.). On October 20, 2014, Complainant filed a response (Compl. Resp.). On October 31, 2014, the Agency filed its reply to the response. The AJ assigned to the case determined that the record had been adequately developed and granted the Agency’s motion. The AJ issued a decision without a hearing on April 19, 2021. The AJ found that the Agency had proffered that the reason for initially coding Complainant in an unpaid status was that Complainant had failed to provide the required medical documentation. Agency Mot. at 13. According to the AJ, Complainant’s affidavit provided little support for a finding of pretext. The AJ observed Complainant’s reason for believing that age was a factor in the challenged action, citing to Coworker 1 as a comparator whose absence was not coded as LWOP. Compl. Resp. at 2. However, asserted the AJ, Complainant provided no evidence to support that Coworker 1 also failed to supply medical documentation, thereby rendering her dissimilar in the most significant respect and not a comparator. 4 2021003758 The AJ also noted Complainant’s reason for believing that disability was a factor, asserting that her medical condition was the reason for requesting FMLA leave. According to the AJ, however, at best that would only establish knowledge of a disability, not present evidence of causation. Regarding Complainant’s reason for pointing to her prior EEO activity as a factor, the AJ noted Complainant’s basis of the Postmaster’s knowledge of the activity (while admitting the RMO was actually someone else altogether). Again, asserted the AJ, that at best established knowledge but did not support causation. The AJ observed that Complainant named three other employees as comparators but provided no set of facts upon which the conclusion could be made that they were comparators. According to the AJ, Complainant’s response provided a bit more argument, but it did not raise or identify issues of material fact as to the chronology of events. Rather, observed the AJ, it instead claimed a “significant dispute of material fact regarding the interpretation of agency regulations and applicable law.” Compl. Resp. at 14. Specifically, the AJ noted, Complainant argued that the Agency was mistaken in its application of the relevant policies and that there was no need for documentation at all, or in the alternative, that it was not required at the time provided. Citing to Commission precedent, the AJ found that Complainant had not, however, adduced the predicate facts necessary to make the dispute material. According to the AJ, even assuming that Complainant was correct that management was misapplying the relevant regulations, that would not meet the standard to show pretext because Complainant had not adduced facts that the regulations were applied differently to someone else. The AJ found that the Agency had met its burden of production by articulating a legitimate, non- discriminatory reason for its actions. The AJ also found that Complainant had not, however, met the burden of persuasion. According to the AJ, Complainant had not presented sufficient evidence for a reasonable factfinder to conclude that her age, disability, or prior EEO activity were motivating factors. 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. CONTENTIONS ON APPEAL Complainant did not submit an appeal brief. On appeal, the Agency expresses agreement with the AJ’s decision, requesting that the Commission affirm the decision and the Agency’s final action. 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. 5 2021003758 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 and discovery before the AJ, 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. 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). 6 2021003758 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. 7 2021003758 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