[Redacted], Matilde M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 9, 2023

Appeal No. 2022000769 (E.E.O.C. Mar. 9, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilde M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022000769 Hearing No. 480-2020-00584X Agency No. 4E-890-0074-19 DECISION On November 23, 2021, Complainant, who is represented by counsel, 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 October 20, 2020 final order on 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. BACKGROUND During the period at issue, Complainant was employed by the Agency as a Manager, Customer Services, EAS-20, at the Las Vegas Post Office, Huntridge Station, in Las Vegas, Nevada. On November 15, 2019, Complainant filed an EEO complaint, as amended, alleging that the Agency subjected her a hostile work environment based on sex (female) and reprisal for prior protected EEO activity under Title VII when: 1. Beginning February 2019, the Manager of Customer Service Operations (“Manager”) (male) of the Las Vegas Post Office, who was Complainant’s first line supervisor, refused to allocate enough staff to support her operation. 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. 2022000769 2 2. In May 2019, Manager tried to force her to hire his friend as a supervisor reporting to her. 3. On July 17, 2019, she was placed in an off-duty status and accused of sharing her postal login and password with her subordinate supervisors. 4. On December 18, 2019, she was issued a notice of proposed removal. After the Agency investigated the EEO complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Over her objections, in September 2021, the AJ granted the Agency’s Motion for Summary Judgment and issued a decision without finding no discrimination on issues 1 - 3 and dismissing issue 4. Regarding issue 4, on March 30, 2020, the Agency had sustained a portion of the charges in the proposed removal and mitigated it to a demotion. The AJ found that the proposed removal merged into the decision to demote, which was appealable to the Merit Systems Protection Board (MSPB), and for this reason dismissed issue 4. The AJ found that the Agency’s later rescinding the demotion did not resurrect issue 4 because once it merged, it ceased to exist.2 Complainant also filed a motion with the AJ to amend her complaint to add the issue that on April 16, 2021, the Agency again issued her a notice of proposed removal. Her motion did not include a copy of it. The AJ denied the motion because Complainant did not show that the issues addressed in that notice had any relation to the issues in the instant complaint. Meanwhile, in September 2021, Complainant filed an EEO complaint with the Agency which it defined as concerning the proposed removal dated April 16, 2021. After an investigation, the Agency issued a decision finding no discrimination was established. Complainant appealed the decision to this office, which was identified as EEOC Appeal No. 2022002504, and is pending. This proposal was for five events, two of which were the same as in the issue 4 proposed removal. The matching events were: (a) on June 17 & 25, 2019, and July 1, 2019, Complainant made clock ring entries for her subordinate daughter, despite being instructed not to do so; and (b) she provided her login credentials to at least two subordinate employees. On January 20, 2022, the Agency sustained the charges in the second proposed removal and terminated Complainant effective January 28, 2022. She appealed to the MSPB, and alleged race and sex discrimination. Following a hearing, the MSPB AJ issued an initial decision sustaining the charges and all specifications and finding no discrimination. In its discussion finding no discrimination, the MSPB discussed Complainant’s comparative evidence on others sharing their login credentials.3 2 Complainant appealed her demotion to the MSPB. After the Agency rescinded it, the MSPB dismissed the appeal. See MSPB Initial Decision SF-0752-22-0202-I-1, footnote 1 (Nov. 28, 2022). 3 Complainant filed a petition for review of the MSPB’s initial decision with the Board, and as of March 1, 2023, it is still pending. The initial decision was docketed as MSPB No. SF-0752-22- 0202-I-1. 2022000769 3 Regarding the remaining issues, the AJ found that Complainant did not make out a prima facie case of reprisal discrimination because her she first engaged in EEO on August 5, 2019, when she initiated contact with an EEO counselor on the instant complaint, after all the alleged acts raised in the complaint occurred. The AJ disagreed with Complainant that she engaged in protected oppositional activity regarding Manager allegedly instructing her to hire his friend as her subordinate supervisor in May 2021. Issue 1 of the complaint before us concerns the five-month period from Complainant’s promotion to Manager, Customer Services in February 2021, to her being put on involuntary administrative leave on July 17, 2021. The station had been authorized to have a customer services manager with two subordinate supervisors. Complainant was one of the supervisors until her promotion to manager. The AJ found that up through April 26, 2019, there were a series of acting supervisors, sometimes two simultaneously (known as “204(b)s”) and a permanent supervisor (“Permanent Supervisor”). Permanent Supervisor was put on involuntary leave on April 27, 2019. In her opposition to summary judgment, Complainant argued that Permanent Supervisor was assigned to Huntridge, but during the entire time she was a manager was not physically present because she was on paid leave. The AJ found that there was no genuine issue of material fact that Permanent Supervisor was present because pay records showed that up through April 26, 2019, Permanent Supervisor received regular duty pay except for brief periods of leave at Huntridge Station. The AJ found that after Permanent Supervisor departed, Complainant had one subordinate acting supervisor through May 20, 2019 - about three weeks, then two through the date Complainant was put on involuntary administrative leave. On issue 2, the evidence shows the candidate Complainant wanted to hire was male. The candidate Manager allegedly instructed her to hire because he was his friend was also male. The AJ found that given this, Complainant did not establish that sex was a factor in Manager’s actions. In any event, despite what the Manager told her, Complainant went ahead and offered the position to the candidate she preferred, and he declined the position. Regarding issue 3, Manager made the decision to involuntarily put Complainant on off-duty status with pay. He stated he did so because Complainant violated Agency policy by sharing her login and passwords with subordinate supervisors. The AJ found that the Agency placed Complainant in off-duty status for this reason, not discrimination, and added that the record showed she made timekeeping entries for her daughter. The Agency issued a final order adopting the AJ’s decision. The instant appeal followed. 2022000769 4 ANALYSIS AND FINDINGS Preliminary matters On appeal, Complainant argues that the AJ improperly dismissed issue 4 and denied her motion to amend. We agree with the AJ’s reason for dismissing issue 4. We also affirm the AJ’s denial of Complainant’s motion to amend but rely on another reason. The motion to amend concerned the notice of proposed removal against Complainant dated April 16, 2021. The Agency issued a decision sustaining the proposal. The proposal merged with the decision to remove, which Complainant appealed to the MSPB. Complainant argues on appeal that the AJ improperly denied her motion to compel discovery because her discovery request was untimely. She argues her request was timely. The AJ did not abuse his discretion in finding it untimely. Complainant argues that in calculating this time limit, if it falls on a Saturday, Sunday, or holiday, it runs to the next business day. This is true only for the last day of a time limit. It does not apply from when the time period begins to run, as argued by Complainant. 29 C.F.R. § 1614.604(d). Summary Judgment 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. The U.S. Supreme Court has ruled that summary judgment is proper when a court determines, using the substantive legal and evidentiary standards that apply to the case, that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s job is not to weigh the evidence. Its job is to determine if there are genuine issues for trial. Id. at 249. The evidence of the party who did not request summary must be believed and all justifiable inferences drawn in their favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the party who did not request summary judgment. 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. If a case can only be resolved by weighing conflicting evidence, making a decision without holding a hearing is improper. 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 factfinder could not find for Complainant. 2022000769 5 Issues 1, 2, and 3 We agree with the AJ’s finding that Complainant did not establish a prima facie case of unlawful retaliation because the events at issue all occurred prior to Complainant’s protected activity. The AJ’s finding of no sex discrimination is supported by a preponderance of the evidence. Contrary to Complainant’s contention, the record supported the AJ’s finding that for most of the five months Complainant was a manager, she had the full-complement of two subordinate supervisors. On appeal, Complainant submits a December 22, 2021 email by Permanent Supervisor that shortly before Complainant became the manager until April 2019, she was assigned to the Huntridge Station as a supervisor but was not physically there because she was on a route inspection team assigned to do street observations for other stations. Complainant argues this shows Permanent Supervisor did not perform duties at the Huntridge Station during the period in question. In reply, the Agency argues that this email should not be considered because Complainant submits this information for the first time on appeal and gives no reason for not submitting it to the AJ. We agree. We also agree with the AJ that Complainant did not prove discrimination regarding Manager trying to force her to hire his friend and being placed on off-duty status for sharing her postal login and password. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 2022000769 6 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). 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. 2022000769 7 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 March 9, 2023 Date