EEOC Appeal 2020000451

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jade R.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 2020000451
Hearing No. 532-2018-00091X
Agency No. 4C-440-0177-16
DECISION
On September 13, 2019, 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
August 15, 2019, 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.
ISSUES PRESENTED
The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether
preponderant 	evidence 	in 	the 	record 	establishes 	that 	Complainant 	was 	subjected 	to
discrimination based on race, national origin, and/or sex.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier
at the Agency’s Cleveland Carrier Annex facility in Cleveland, Ohio. Complainant is an African-
American female. On May 19, 2016, a Supervisor, Customer Service (S1) issued Complainant a
Letter of Warning (LOW) for failure to follow instructions. In the LOW, S1 stated that, on May
12, 2016, Complainant was assigned to carry mail on her assigned route plus a half pivot on
another route. According to S1, although Complainant was instructed to work a total of eight
hours and be back by 4:30 p.m. on May 12, 2016, 	Complainant worked 8.25 hours, incurring
unauthorized overtime. In the LOW, S1 noted that Complainant said during the pre-disciplinary
interview (PDI) that she had called the office twice, but that no one answered the phone on May
12, 2016.
According to Complainant, when she was assigned the pivot on May 12, 2016, she was
instructed to call if she would not make it back on time. Complainant alleged that she called the
office on May 12, 2016, to report that she would not make it back on time, in accordance with
the instructions she received from her supervisor. S1 averred that all Carriers are instructed to
call the facility office by 2:00 p.m. and speak with a supervisor if they will be unable to make it
back to the facility by 4:30 p.m. According to S1, Complainant did not speak with anyone on
May 12, 2016, to communicate that she would return after 4:30 p.m.
Complainant alleged that her race, national origin, and sex were factors because other Carriers
who were late were not given a PDI or disciplined. Complainant identified a Black male (C1), a
White male (C2), and a White female (C3) as three Carriers who incurred unauthorized overtime.
According to the record, C1 worked more than eight hours on May 7, 9, 10, and 13, 2016. S1
stated that C1 worked approved overtime on May 7 and 9, 2016, and that he worked approved
overtime as a union steward on May 10 and 13, 2016. The record reflects that C2 and C3 worked
more than eight hours on May 9, 2016, and S1 averred that C2 and C3 worked approved
overtime on May 9, 2016. According to the record, Complainant worked approved overtime on
May 7 and 9, 2016. The record reflects that, on May 25, 2016, S1 issued a LOW for failure to
follow instructions to another African-American female Carrier (C4) for working unauthorized
overtime on May 14 and 17, 2016.
On 	October 	19, 	2016, 	Complainant 	filed 	an 	EEO 	complaint 	alleging 	that 	the 	Agency
discriminated against her on the bases of race (African-American), national origin (African-
American), and sex (female) when, on May 19, 2016, she was issued a Letter of Warning, which
was subsequently reduced to an official discussion.2
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 EEOC AJ.
Complainant timely requested a hearing.
2 According to the record, Complainant filed a grievance, and the LOW was reduced to an
official discussion on June 21, 2016.

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The AJ assigned to the case notified the parties of her intent to issue a decision without a
hearing. In the notice, the AJ identified the only disputed issue as whether Complainant called
her supervisors by 2:00 p.m. on May 12, 2016, to let them know that she was running late. The
AJ noted that Complainant asserted that she had called and that S1 denied that Complainant
called to report that she would be late. Over Complainant's objections, the AJ issued a decision
without a hearing on August 5, 2019. 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.
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she established a prima facie case of discrimination.
Complainant states that, although she called in accordance with the instructions she received, she
was disciplined while White Carriers and an African-American male Carrier were not disciplined
for overtime incurred during the week of May 12, 2016. Complainant notes that C4, another
African-American female Carrier was also disciplined. According to Complainant, S1 was an
Acting Supervisor at the time she issued Complainant the LOW. Complainant requests that the
matter be remanded for a hearing.
In response to Complainant’s appeal, the Agency contends that the AJ correctly concluded that
there were no genuine issues of material fact and that Complainant had not established that she
was subjected to discrimination as alleged.
ANALYSIS AND FINDINGS
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). 	This essentially means that we should look at this case with fresh eyes. 	In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions 	and 	legal 	analysis 	– 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination 	occurred, 	and 	on 	the 	legal 	issue 	of 	whether 	any 	federal 	employment
discrimination statute was violated. 	See id. at Chapter 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

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We determine whether the AJ appropriately issued the decision without a hearing. 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 held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.
An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed.
To successfully oppose a decision without a hearing, Complainant must identify material facts of
record that are in dispute or present further material evidence establishing facts in dispute. Here,
Complainant contends that she did call the facility’s office when she realized that she would be
late. The AJ’s notice of intent to issue a decision without a hearing stated that the only disputed
issue was whether Complainant called the office on May 12, 2016, and we find that it is not
material whether Complainant actually called the office. It is undisputed that, even assuming for
the purposes of summary judgment that Complainant did call the office, she did not speak to a
supervisor to report that she would not be able to return by 4:30 p.m. Further, to the extent that
Complainant challenges whether S1 was a Supervisor or an Acting Supervisor, we find that this
is not material, as it is undisputed that S1 was working in a supervisory capacity, was in charge
of managing time and attendance, and was authorized to issue discipline. Accordingly, we find
that Complainant has not identified a genuine dispute of material fact and that the AJ properly
issued a decision without a hearing.
Complainant alleged that she was subjected to discrimination based on race, national origin, and
sex when she was issued a LOW. The Letter of Warning was reduced to an official discussion
through the grievance process. To prevail in a disparate treatment claim, Complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 	She must generally establish a prima facie case by
demonstrating that she was subjected to an adverse employment action under circumstances that
would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576
(1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency
has articulated legitimate and nondiscriminatory reasons for its conduct. 	See U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination.

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Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995).
The Agency’s legitimate, nondiscriminatory reason for issuing Complainant the Letter of
Warning was that she did not return by 4:30 p.m. on May 12, 2016, incurring unauthorized
overtime. As evidence of pretext, Complainant notes that three of her similarly situated
coworkers who did not return by 4:30 p.m. and incurred overtime were not disciplined. However,
the record reflects that C1, C2, and C3 called in to the office in accordance with supervisory
instructions and were approved to work overtime on the dates in question, whereas Complainant
was not approved to work overtime on May 12, 2016. While Complainant may have called in to
the office, she admitted that no one answered the phone and that she did not receive supervisory
approval to work past 4:30 p.m. on May 12, 2016. Moreover, the record reflects that
Complainant worked overtime on May 7 and 9, 2016, and she was not disciplined regarding
those dates. We find that Complainant has not established by preponderant evidence in the
record that the Agency’s legitimate, nondiscriminatory reason for issuing her the LOW is
pretextual.
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 implementing the AJ’s
decision without a hearing finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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).

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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, 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.

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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
November 19, 2020
Date