2024000599•EEOC Appeal 2024000599
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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
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