[Redacted], Verla G., 1 Complainant,v.Louis DeJoy, Postmaster General, U.S. Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 19, 2022

Appeal No. 2021003498 (E.E.O.C. Sep. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verla G.,1 Complainant, v. Louis DeJoy, Postmaster General, U.S. Postal Service, Agency. Appeal No. 2021003498 Hearing No. 430-2020-00325X Agency No. 4K280020119 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 March 26, 2021 final order concerning 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. 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 Rural Carrier, P-02, at the Agency’s Post Office in Harrisburg, North Carolina. On November 26, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment in reprisal her for prior protected EEO activity when: (1) since August 26, 2019, Complainant was followed and written up on her route; and (2) on September 7, 2019, Complainant was issued a Notice of Removal for Failure to be Regular in Attendance. 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. 2021003498 2 Complainant’s immediate supervisor was the Supervisor of Customer Services (S1). Report of Investigation (ROI) at 65. Complainant had filed a prior EEO complaint against S1 and the Postmaster (S2) in March 2018. As additional background, the record reflects that the Agency had issued Complainant a prior removal action in December 2017, which was settled on April 1, 2019. ROI at 88, 90. Claim 1 - Heightened Scrutiny Complainant claimed that after she returned from being on leave for an on-the- job injury, in June 2018, S1 subjected her to heightened scrutiny. She claimed that she was the only one that S1 followed all the time. S1 acknowledged that he followed her on the identified 10 dates as Complainant alleged, but S1 testified that the street observations did not result in any written report or adverse personnel action. S1 stated he monitored Complainant as part of his supervisory responsibilities. S1 also said that Complainant did not complain to him regarding harassment. Claim 2 - Notice of Removal The record includes the Notice of Removal dated September 3, 2019. ROI at 101- 102. The Notice states that Complainant was charged with absences from July 9, 2019 through July 26, 2019. In addition, the notice referenced dates in June 2019. It is undisputed that she was charged with six unscheduled absences and failing to be regular in attendance. On September 3, 2019, Complainant told S1 that she was not feeling well and asked to be taken off the schedule. S1acknowledged that she requested to be off. ROI at 79. S1 issued her the removal notice on September 7, 2019. Although Complainant disputed one of the dates at issue, Complainant acknowledged, during the investigative interview, that she failed to be regular in attendance. S1 acknowledged that he supervised others, who had unscheduled absences and were not removed, but he averred that no other employee had missed as many days as Complainant had missed. ROI at 80. 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. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS Initially, we note that this matter pertains to a mixed-case complaint. A mixed-case complaint is a complaint of employment discrimination filed with a federal agency alleging discrimination on a protected basis from an action that can be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. § 1614.302(a)(1). Following the investigation of an accepted mixed-case complaint, an agency is required to provide a complainant with appeal rights to the MSPB. 2021003498 3 We note that the Agency failed to process this matter as a mixed-case complaint with subsequent appeal rights to the MSPB. Nonetheless, the Commission properly may assume initial jurisdiction of a mixed case issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915 01984977 (Nov. 5, 2001). Here, we find that this claim is so firmly enmeshed in the EEO forum that it would better serve the interests of administrative economy to address it in the instant appeal. 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. (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 retaliatory animus. After a careful review of the record, we find that the record has been adequately developed and no genuine issue of material fact exists. Construing the evidence in the light most favorable to Complainant, will assume that Complainant established a prima facie case of reprisal. Here, however, the Agency articulated legitimate, non-retaliatory reasons for its actions. It was undisputed that, as a supervisor, S1 had a responsibility to monitor staff. He conducted street observations. It was also undisputed that Complainant had a history of prior sustained disciplinary actions and unscheduled absences. S1 averred he monitored her, based on his and management’s perceptions of her well-documented unscheduled absences and past disciplinary history. The Notice of Removal delineated numerous unscheduled absences as the reason for her removal. Complainant has failed to establish a dispute of pretext warranting a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor on this complaint. 2021003498 4 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 subjected to reprisal or a hostile work environment 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. 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. 2021003498 5 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. 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