EEOC Appeal 2020000038

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Valery G.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000038
Hearing No. 410-2017-00568X
Agency No. 1K-302-0015-17
DECISION
On August 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 18, 2019 final action 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 as a Manager, Maintenance Operations Support
at the Agency’s Peachtree Processing and Distribution (Peachtree P&DC) in Peachtree, Georgia.
On March 10, 2017, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment/a hostile work environment on the bases of race (African-
American), sex (female), and in reprisal for prior protected EEO activity (Agency No. 1K-302-
0062-15)) when:
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.

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1. 	on November 1, 2016, her leave request for November 8-14, 2016 was denied, via
email;
2. 	on November 29, 2016, she was issued a Notice of Proposed Letter of Warning in lieu
of a 7-Day Suspension for Unsatisfactory Attendance/Absent Without Official Leave
(AWOL); and
3. 	on February 8, 2017, she was issued a Notice of Proposed Letter of Warning in lieu of
a 7-Day Suspension for Unsatisfactory Performance.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). 	Thereafter, the
Agency submitted a Motion for Decision Without a Hearing. 	Complainant responded to the
motion. On July 3, 2019, the AJ issued a decision by summary judgment in favor of the Agency.
The Agency thereafter issued the instant final action implementing the AJ’s decision.
The instant appeal followed.
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.
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.
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. However, we have also recognized that not every factual
dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of
Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice,
EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine
dispute that required 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.
The record developed during the investigation establishes that during the relevant period
Complainant was a Manager, Maintenance Operations Support at the Peachtree P&DC.

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Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation 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 Department of
Community 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 Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).
Regarding claim 1, Complainant asserted that on November 1, 2016, her leave request for
November 8-14, 2016 was denied via email.
The AJ noted that Complainant’s leave request for November 8 - 14, 2016 was denied because
Complainant submitted the request only one week before the start of the requested leave, and her
department was “running behind” on work. The AJ noted that the Acting Manager Maintenance
(Asian male) explained that on October 30, 2016, Complainant requested an additional week of
leave “which was not planned for. 	There were several tasks that her department was running
behind on…updating and maintain the software library, clean and organize the stockroom, verify
and order critical parts in anticipation of the busy Christmas mailing season. I denied her leave
request, nothing that her services were needed due to the workload leading into the heavy mailing
season.”
Regarding claim 2, Complainant alleged that on November 29, 2016, she was issued a Notice of
Proposed 	Letter 	of 	Warning 	(LOW) 	in 	lieu 	of 	a 	7-Day 	Suspension 	for 	Unsatisfactory
Attendance/AWOL.

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The AJ noted that Complainant received the November 29, 2016 Notice of Proposed Letter of
Warning in lieu of a 7-Day Suspension for Unsatisfactory because she failed to come to work after
her leave request was not approved. 	He also noted that Complainant did not notify Agency
management that she would be absent.
The Manager stated that he issued the proposed LOW because Complainant’s leave request was
disapproved and “she was scheduled to report to work and did not provide notification that she
would be absent.”
The record contains a copy of the November 29, 2016 notice in which the Manager explained that
Complainant’s excuse that she thought her leave request was approved because he did not respond
to it immediately was unacceptable. 	The Manager stated that “in consideration of your prior
infraction and corrective discipline, you were charged AWOL.” He determined that Complainant
violated Section 665.42 “Absence Without Permission” of the Employee and Labor Relations
Manual (ELM).
Regarding claim 3, Complainant alleged that on February 8, 2017, she was issued a Notice of
Proposed Letter of Warning in lieu of a 7-Day Suspension for Unsatisfactory Performance.
The Manager stated that Complainant was issued a Notice of Proposed LOW in lieu of a 7-Day
Suspension for Unsatisfactory Performance because as the Manager, Maintenance Operations
Support, her core duty “is to ensure critical parts are in inventory. She failed to perform her duties
when two critical parts were needed but were not in inventory. 	One part which was needed on
12/28/2016 was not in inventory since 8/21/2016. 	This part was finally ordered on 12/28/2016
after an APPS [Automated Package Processing System] machine was out of service for an
extended period while this part was procured from out of state.”
Further, the Manager stated the other part was in the Peachtree P&DC since May 2016, but
Complainant did not ensure that this other part was inventoried until January 12, 2017, when an
APPS machine was out of service for an extended period of time while the part was procured from
another facility. He asserted that in both of these instances, the mail processing equipment were
“out of service for longer periods of time that they should have, creating a delay in processing of
customers’ mail.”
The Lead Maintenance Manager (African-American male) stated that he was also Complainant’s
manager. Regarding Complainant’s harassment allegation, he noted that everything she stated to
me was work-related. 	For instance, he noted that the Manager “was asking or instructing
[Complainant] to carry out her duties as the Manager Maintenance Operations support…the
activities that were expressed to me by [Complainant] were the basic responsibilities that
[Manager] was expected to conduct as the acting Manager Maintenance Operations for Peachtree
PDC.”

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In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
and assuming arguendo that Complainant established a prima facie case on any of the raised bases,
there is nevertheless adequate support for the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions, which
were not pretextual.
Harassment
To prove her harassment/hostile work environment claim, Complainant must establish that she
was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant must
also prove that the conduct was taken because of a protected basis – in this case, her prior EEO
activity. Only if Complainant establishes both of these elements – hostility and motive – will the
question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
The image which emerges from considering the totality of the record is that there may well have
been 	conflicts and tensions with Agency management style that left Complainant feeling
aggrieved. 	However, the record does not support a determination that Complainant was subjected
to severe or pervasive conduct that merits a finding of discriminatory harassment, as manifested
in our above discussion of the subject claims. Moreover, beyond her bare assertions, Complainant
has simply provided no evidence to support her claim that her treatment was the result of her race,
sex, and/or prior EEO activity.
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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.

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Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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 14, 2020
Date