EEOC Appeal 2024000599

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Azucena A.,1
Complainant,
v.
David Steiner,
Postmaster General,
United States Postal Service
(Field Areas and Regions),
Agency.
Appeal No. 2024000599
Hearing No. 480-2022-00596X
Agency No. 1F-841-0028-22
DECISION
Complainant timely 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 September 25, 2023, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.
At the time of events giving rise to this complaint, Complainant worked as a Parcel
Post Distribution Machine Clerk at the Agency’s Las Vegas Mail Processing
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.

2024000599	2
Annex (MPA) facility in Las Vegas, Nevada. Complainant’s employment was
subject to a 90-day probationary period beginning on July 31, 2021, and ending on
October 28, 2021.
On March 8, 2022, Complainant filed a formal complaint alleging that the Agency
discriminated 	against 	her 	on 	the 	bases 	of 	race 	(Black/White), 	sex 	(female;
pregnancy), color (Light skin), and disability (physical) when:
1. 	On September 30, 2021, Complainant’s light duty was ended, and she
was sent home and not permitted to work.
2. 	On October 13, 2021, Complainant was issued a Notice of Separation.
On or about August 12, 2021, Complainant informed management that she was
pregnant. Complainant stated that her pregnancy was high risk due to stress,
depression, a recent miscarriage, and a Covid-19 infection, and she identified her
disability as pregnancy-related restrictions.
Complainant’s position of record required her to lift packages weighing up to 70
pounds. On September 10, 2021, Complainant submitted a request for light duty.
Medical documentation dated September 10, 2021, identified her restrictions as
lifting up to 20 pounds for eight hours per shift and carrying, pushing, and pulling
up to 20 pounds for two hours per shift.
On September 13, 2021, Complainant accepted an offer of light duty, effective
September 13, 2021, through October 13, 2021, at the Las Vegas Processing &
Distribution Center (PDC). The PDC was a separate building from the MPA.
On September 30, 2021, Complainant went to the MPA to submit a request to
extend 	her 	light 	duty 	assignment. 	Complainant 	alleged 	that 	a 	Manager 	of
Distribution Operations (Manager-1) ended her light duty assignment, telling her
that her light duty would not be extended and that she should leave and not return
until she was released to full duty. Manager-1 denied ending Complainant’s light
duty 	assignment 	or 	sending 	her 	home. 	According 	to 	Manager-1, 	she 	told
Complainant that her extension request did not need to be addressed at that time
because her light duty assignment would continue through October 13, 2021.
On October 1, 2021, Complainant’s access to the MPA was removed at the request
of a Supervisor of Distribution Operations (Supervisor-1).

2024000599	3
Manager-1 stated that she instructed Supervisor-1 to disable Complainant’s access
because her current work assignment was at the PDC and, on September 30, 2021,
she had been wandering around the MPA talking to people outside of her shift.
Complainant requested eight hours of leave for October 1, 2021. According to the
record, on October 2, 2021, Complainant attempted to clock in at the start of her
tour at the MPA before clocking in to begin her tour at the PDC. Approximately 15
minutes after clocking in at the PDC, Complainant ended her tour. Complainant
was marked part-day leave without pay (LWOP) in lieu of sick leave for the
remainder of October 2, 2021.
According to the record, on October 3 and 4, 2021, Complainant did not report to
work or call in to report she would be absent, and she was marked absent without
leave (AWOL). October 5 and 6, 2021, were Complainant’s scheduled days off.
Complainant was approved for eight hours of unscheduled LWOP in lieu of sick
leave for each day from October 7-10, 2021. The record contains automated emails
notifying management that Complainant submitted electronic leave requests for
October 8-10, 2021.
On October 13, 2021, Supervisor-1 issued Complainant a Notice of Separation
During Probation that was effective immediately upon receipt. According to
signature confirmation information, Complainant signed for receipt of the Notice
on October 14, 2021. The Notice stated that Complainant failed to meet the
requirements of her position in the area of dependability. Supervisor-1 stated that
Complainant was separated because she was AWOL on October 3 and 4, 2021.
Complainant alleged that she was terminated for being pregnant and requesting
light duty.
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 Administrative Judge (AJ). Complainant timely requested a
hearing before an AJ. The Agency submitted a motion for a decision without a
hearing, which Complainant failed to oppose.
The AJ granted the Agency’s motion and issued a decision by summary judgment
in favor of the Agency, finding no discrimination. The AJ found that the Agency
had provided legitimate, nondiscriminatory explanations for its actions and that
there was no genuine issue of material fact that the Agency’s reasons were

2024000599	4
unworthy of credence or were a pretext for discrimination based on race, sex,
color, and/or disability.
The Agency subsequently issued a final order fully implementing the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. The instant appeal followed.
On appeal, Complainant argues, among other things, that she did not understand
the requirements of the hearing process because she was unrepresented, and she
requests that an attorney be appointed to represent her if possible. Complainant
contends 	that 	she 	was 	treated 	unfairly. 	According 	to 	Complainant, 	she 	has
evidence proving that she was subjected to discrimination as alleged. We will
address Complainant’s arguments below.
The Agency argues, in pertinent part, that its final order should be affirmed.
As this is an appeal from a decision issued without a hearing, the Agency’s
decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (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”); see also 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).
On appeal, Complainant requests that an attorney be appointed for her. However,
EEOC regulations do not provide for the Commission to appoint an attorney to
represent a complainant during the administrative process. See Fletcher E. v. U.S.
Postal Serv., EEOC Appeal No. 0120170720 (July 6, 2017). If Complainant files a
civil action, she may request that the United States District Court appoint an
attorney to represent her. For more information, we direct Complainant to the
“Statement of Rights” below.

2024000599	5
While Complainant avers that she was unaware of how to navigate the hearing
process because she was pro se, we note that Complainant is responsible for
proceeding with the complaint at all times, whether or not she has a representative.
29 C.F.R. § 1614.605(e). The record shows that Complainant used the EEOC’s
Public Portal to file her Preliminary Case Information Response in accordance with
the AJ’s order and to provide evidence regarding the debts she incurred as a result
of her termination during the hearing process. Although Complainant contends that
she has evidence that supports her claims, she did not provide this evidence during
the investigation, in response to the Agency’s motion without a hearing, or with
her appeal.2 We will review the existing record to examine whether there are any
genuine issues of material fact.
The Commission’s regulations allow an AJ to grant summary judgment when they
find 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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). A fact is
“material” if it has the potential to affect the outcome of the case. Id. When
considering summary judgment, facts and inferences must be viewed in the light
most favorable to the non-moving party. See Ricci v. DeStefano, 557 U.S. 557,
586 (2009).
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. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-24; see
also EEO MD-110, at Chap. 7, § III.E. 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.
2 We further note that, as a general rule, no new evidence will be considered on
appeal 	absent 	an 	affirmative showing 	that 	the evidence was 	not 	reasonably
available prior to or during the investigation or during the hearing process. See
EEO MD-110, at Ch. 9, § VI.A.3.

2024000599	6
Complainant cannot establish that she was denied an accommodation for her
pregnancy-related 	restrictions 	under the Rehabilitation 	Act 	or 	the 	Pregnancy
Discrimination Act (PDA), 42 U.S.C. § 2000e(k) (1978).3 Complainant requested
light duty work to accommodate her restrictions on September 10, 2021, and she
accepted a light duty assignment within her restrictions at the PDC on September
13, 2021. Even if we were to assume, for the sake of summary judgment, that
management sent Complainant home on September 30, 2021, or told that her light
duty assignment would not be extended beyond October 13, 2021, this would be
insufficient to establish a genuine issue of material fact. Complainant requested
leave for October 1, 2021, briefly clocked in before requesting leave on October 2,
2021, did not report for work October 3-4, 2021, and requested leave October 7-10,
2021. October 5-6 and 12-13, 2021, were Complainant’s scheduled day off, and
October 11, 2021, was a federal holiday for Columbus Day.4 On October 13, 2021,
Supervisor-1 issued Complainant a Notice of Termination for dependability, which
was effective immediately upon receipt on October 14, 2021. As discussed below,
we find that a reasonable finder of fact could not find that her termination was
discriminatory. Accordingly, the undisputed material evidence establishes that
Complainant was accommodated with either light duty work or requested leave up
to the effective date of her termination.
The Agency 	provided 	a legitimate, nondiscriminatory 	reason 	for terminating
Complainant 	during 	her 	probationary 	period, 	which 	was 	that 	she 	failed 	to
demonstrate dependability because she did not report to work or call in to request
leave on October 3 and 4, 2021. Complainant alleged that she was terminated for
requesting light duty for pregnancy and that Manager-1 had a reputation for
mistreating Black women and light-skinned Black women, but speculative and
generalized assertions are insufficient to create a genuine issue of material fact
regarding pretext. Complainant contends on appeal that she was treated unfairly.
3 The Pregnant Workers’ Fairness Act of 2023 (PWFA), 42 U.S.C. § 2000gg et
seq. does not apply in the instant case because the PWFA only applies to alleged
violations occurring on or after June 27, 2023. See Colleen M. v. U.S. Postal Serv.,
EEOC Appeal No. 2023000970 (Sept. 29, 2025); Doloris W. v. Dep’t of the
Treasury, EEOC Appeal No. 2023005335 n.3 (July 31, 2025).
4 See Office of Personnel Management, Federal Holidays: Historical Data (2023-
2011), available at https://www.opm.gov/policy-data-oversight/pay-leave/federal-
holidays/#url=Historical-Data.

2024000599	7
However, we have consistently stated that pretext analysis is not concerned with
whether the Agency’s action was unfair or erroneous but whether it was motivated
by discriminatory animus. Andrews v. U.S. Postal Serv., EEOC Petition No.
03980017 (May 28, 1988). Complainant asserted that her access to the facility was
removed, but the record shows that her access to the MPA was removed on
October 1, 2021, and that she briefly clocked in at the PDC on October 2, 2021.
Accordingly, Complainant has not shown that she was unable to report to work at
the PDC on October 3 and 4, 2021. Moreover, Complainant requested leave for
October 1, 2021, and October 7-10, 2021, yet there is no evidence that she
requested leave for her absences October 3 and 4, 2021. Complainant has not
identified a genuine issue of material fact that would show that her termination was
motivated by discriminatory animus. Even viewing the evidence in the light most
favorable to Complainant and drawing all justifiable inferences, a reasonable finder
of fact could not conclude that Complainant established that her termination was
discriminatory.
Having thoroughly reviewed the record, and construing any inferences raised by
the undisputed facts in favor of Complainant, we find that a reasonable factfinder
could not find in Complainant’s favor. Upon careful review of the AJ’s decision
and the evidence of record, as well as the parties’ arguments on appeal, including
those 	not 	specifically 	addressed 	herein, 	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 	implementing 	the 	AJ’s
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1125)
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.

2024000599	8
Requests for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) 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 their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, 	Complainant 	can
submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124)
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.

2024000599	9
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 their 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:
T. Gimbrere __________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 23, 2026
Date