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

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000297 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nadene M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000297 Hearing No. 480-2020-00121X Agency No. 1F-927-0053-19 DECISION On October 9, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2020 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a PSE-Mail Processing Clerk, 06/FF, at the Agency’s Processing and Distribution Center in Anaheim, California. On November 27, 2018, Complainant stated that she gave the Manager, Distribution Operations (Manager) a leave request (Form 3971) requesting 56 hours of leave without pay (LWOP) for a trip she was taking to Greece from March 29 through April 8, 2019. Complainant averred Manager told her there would not be a problem with her leave request; however, she failed to tell Complainant the leave request needed to be approved by the Plant Manager. On March 21, 2019, when Complainant reminded Manager about her upcoming trip, Manager told Complainant to resubmit her leave request for LWOP so that the Plant Manager could approve 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. 2021000297 2 the request. Complainant submitted Form 3971 on March 19, 2019, to S1, who passed it along to the Plant Manager. That same day, the Plant Manager denied Complainant’s leave request. When Complainant went to discuss the denial with the Plant Manager, he informed her if she went on her trip, she would be Absent Without Leave (AWOL). The Plant Manager explained the Agency’s policy for a LWOP request in excess of eight hours was to submit a letter to the Plant Manager stating the need and reason for LWOP in a timely manner. However, he denied Complainant’s request because it was submitted approximately eight days before the start of the leave request, and the employee schedules for that time frame had already been posted. Additionally, in terms of stating the need and reason for LWOP, Complainant did not submit a letter, she merely wrote, “Please! Going to Greece on the 29th w/ a group of people! Thank You!” on her request. On July 9, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of age (YOB: 1968) when on March 19, 2019, Complainant was denied the use of Leave Without Pay (LWOP). 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. The AJ assigned to the matter granted the Agency’s motion and issued a decision by summary judgment in favor of the Agency. In the decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ found that the Plant Manager denied Complainant’s request because it was submitted only eight days prior to the first day of requested leave. Further, Complainant’s request, although for a family vacation, was not for a “family-related” reason, and it would not have been prudent for Complainant to be granted leave when staffing of the unit at that time already necessitated mandatory overtime for career employees on their non-scheduled days. The AJ determined that, regardless of whether the Manager intentionally or negligently failed to forward Complainant’s initial LWOP request to the Plant Manager, there was no evidence that Complainant's age was a factor in the Manager’s failure to forward the request. The AJ concluded that Complainant failed to show that Agency management’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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. 2021000297 3 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 animus. Here, however, Complainant has failed to establish such a dispute. Complainant failed to demonstrate that the Agency officials in this matter harbored discriminatory animus or that the legitimate, non-discriminatory reasons provided by the officials were pretext for unlawful discrimination. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Upon careful review of the AJ’s decision and the evidence of record, 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 adopting 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. 2021000297 4 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). 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. 2021000297 5 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 2, 2022 Date