2025003706•EEOC Appeal 2025003706
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Latina E.,1 Complainant, v. David Steiner, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2025003706 Hearing No. 520-2024-00198X Agency No. 4B-020-0099-23 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 June 24, 2025, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission REVERSES the final order and REMANDS the matter for further action. 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.
2025003706 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor Customer Service at the Agency’s Central Square Post Office in Cambridge, Massachusetts. On August 29, 2023, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of color (White) and age (YOB: 1970), and in reprisal for prior protected EEO activity, when: 1. on unspecified dates, Complainant’s first-line supervisor (Supervisor) said, “you’re not very good at your job,” and told Complainant to find another career path. He also allegedly stated, “I am giving you one chance to leave on your own, and if you don’t, I will force you out,” and that he knew too many people for Complainant to stop him from doing what he wants. The Supervisor also denied Complainant’s request to change the date of her training; 2. on an unspecified date, the Supervisor stated that Complainant was not qualified; would not be selected; and would not be permitted to work in Cambridge after she applied for another position; 3. in April 2023, the Supervisor gave Complainant the option to choose a Letter of Warning or a reassignment, and when she turned down the reassignment, he said that she would regret it; 4. on April 26, 2023, Complainant’s start time was changed, and she was sent to Harvard Station; 5. on April 29, 2023, the Supervisor verbally harassed Complainant on the telephone and attempted to make her repeat, “I am not the boss in Cambridge”; 6. on an unspecified date, the Supervisor called Complainant for a meeting and made her wait two (2) hours, and then sent her to another facility for the closing shift; 7. on May 12, 2023, the Supervisor accused Complainant of fraud and revoked her “TACS” access; 8. between May 15, and 24, 2023, the Supervisor texted Complainant while she was on leave; 9. on May 24, 2023, Complainant received a voicemail stating, “Happy Birthday, bitch. You should’ve gone to the Annex. Tomorrow the fun begins”;
2025003706 3 10. on May 25, 2023 the Supervisor accused Complainant of hiding a postal laptop; told her to contact her National Association of Postal Supervisors representative; and stated, “now I got you”; 11. on May 26, 2023, the Supervisor said he would contact a Labor Specialist regarding possible disciplinary action against her; and 12. on May 30, 2023, the Supervisor instructed Complainant to force a clerk to work overtime. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Over Complainant’s objections, the AJ granted the Agency’s motion and issued a decision without a hearing on June 9, 2025. As an initial matter, the AJ highlighted that Complainant failed to dispute any of the Agency’s facts, and the AJ found no genuine disputes of material facts. The AJ noted that Complainant proffered 81 facts, but they were not proper facts or were irrelevant or immaterial, and the AJ declined to adopt any of them. The AJ then found that Complainant did not engage in protected EEO activity because there was no evidence that she was ever interviewed, or otherwise participated in, a Coworker’s EEO case. Notably, the evidence showed that the EEO Specialist did not contact any potential witness for the matter, which was withdrawn at the informal stage. Complainant also claimed her EEO activity involved ten (10) telephone calls to a Labor Relations Manager (LR Manager) about harassment and discrimination, but the LR Manager only recalled a single conversation with Complainant when she stated that interactions with the Supervisor had improved. Further, there was no evidence that the LR Manager informed the Supervisor about this conversation, or that it involved discrimination. Regarding the alleged hostile work environment based on color or age, the AJ determined that the events did not occur as alleged, or they were not based on a protected category. In addition, Complainant did not show that the behavior was so severe or pervasive to rise to the level of actionable conduct. The AJ concluded by granting the Agency’s motion and entering a finding of no discrimination. 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.
2025003706 4 The instant appeal followed. Complainant argues that the AJ ignored witness statements and other documentary evidence, and she requests a hearing. The Agency opposes Complainant’s appeal. Complainant moved to strike the Agency’s response as untimely. STANDARD OF REVIEW 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). ANALYSIS Agency Brief As an initial matter, we address Complainant’s Motion to Strike Agency’s Opposition to Complainant’s Appeal. Complainant asserts that she filed her appeal on July 24, 2025, and the Agency had 30 days to file its opposition brief but did not do so until August 29, 2025. The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29 C.F.R. §1614.403(f). The record shows that Complainant filed her appeal brief on July 24, 2025, and 30 days later was August 24, 2025. However, 29 C.F.R. § 1614.604(g) states that if the last day of a filing period falls on a Saturday, Sunday, or federal holiday, the
2025003706 5 filing period will be extended to include the next business day. The Agency’s deadline was August 25, 2025, and its opposition brief followed four (4) days later. The Commission’s regulations further provide that the filing limitation period is subject to waiver, estoppel, and equitable tolling. 29 C.F.R. § 1614.604(f). Agency Counsel explained that she did not receive Complainant’s brief until July 30, 2025, and even if it was untimely, it was inadvertent. The Commission’s portal contains the acknowledgement letter sent to the Agency advising it of Complainant’s appeal filed on July 24, 2025, with instructions to file an opposition brief and notice that statements or briefs submitted after the applicable date may not be considered. We find that the Agency was properly notified of its obligation to adhere to its deadline to file an opposition brief, and Agency Counsel’s explanation is insufficient to waive, estop, or equitably toll its deadline. As such, we will not consider the Agency’s opposition brief. Decision Without a Hearing We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a
2025003706 6 hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a “trial by affidavit.” Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, “there is a need for strident cross-examination and summary judgment on such evidence is improper.” Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24, 1995). After a careful review of the record, we find that the AJ erred when concluding that there were no genuine issues of material fact in this case. The AJ found that, even if the complained of actions occurred, Complainant provided no evidence that they were based on her age or color. However, the record contains witness statements that support the Supervisor’s animus against Complainant based on her age and color, which raises a genuine dispute about his motives. For example, the Coworker attested that he heard the Supervisor state, “you can’t teach an old dog new trick.” Coworker Deposition at 15-16. The AJ stated that the Coworker admitted that it was unclear who the Supervisor was referring to because half the people in the room were older than the Supervisor. However, a Postmaster explained that he heard the Supervisor say this “[m]any times,” in reference to Complainant. Postmaster Deposition at 23. The Postmaster also disclosed that he heard the Supervisor talk about his “vision” to replace employees with “his people,” who were African American and Hispanic women of color because “it
2025003706 7 was easier to control them.” Postmaster Deposition at 23-4. The Coworker observed that those hired by the Supervisor were “all women of color,” and he specified that the Supervisor hired four (4) Black women in four (4) months. Coworker Deposition at 29, 108. The Postmaster added that during a conversation with the Supervisor about hiring the four (4) Black women, the Supervisor stated that they were more easily controlled. Postmaster Deposition at 84. Complainant attested that when she learned of the Supervisor’s plan to hire women of color, she informed him that her husband and children are Black, and he responded that Complainant “wasn’t Black.” ROI at 172. We also find that additional evidence is needed regarding the reprisal basis. In her appeal, Complainant contends that she placed ten (10) calls to the LR Manager, as shown by her submitted telephone records. Complainant asserts that the LR Manager did not state that she only received one (1) call, only that she remembered a single conversation. The LR Manager’s affidavit reveals that she recalled a conversation with Complainant during which she complained of harassment but indicated no action was requested because her interactions with the Postmaster had improved. ROI at 264. While the AJ found that there was no evidence that the LR Manager informed the Supervisor about this single conversation or that it pertained to discrimination, the LR Manager’s statement is too sparse to draw any conclusions against Complainant’s assertions that she asked for the LR Manager’s assistance with the Supervisor’s harassment and discrimination. The LR Manager should be questioned further about any additional communications with Complainant to enable an AJ to determine if Complainant engaged in protected EEO activity, and if so, whether the LR Manager communicated such protected activity to the Supervisor. In addition, the Supervisor should testify to any awareness of Complainant’s opposition to unlawful discrimination or harassment. We further find a need to assess credibility of the Supervisor and other witnesses. Notably, the Supervisor averred that he “never” used the phrase “you can’t teach an old dog new trick,” and that this “phrase is not in [his] repertoire.” ROI at 197, Supervisor Deposition (March 20, 2025) at 175. However, as discussed above, the Coworker and Postmaster witnessed the Supervisor repeatedly use the expression. Complainant also attested that the Supervisor made this comment and that it was too late for her to learn anything new when he was annoyed that she did not know enough about the delivery aspect of the operation, and that he did not know of anyone Complainant’s age who did not drive. ROI at 130-1.
2025003706 8 The Supervisor also repeatedly denied the purported conduct. For example, he averred that he never made the statement that Complainant was not good at her job and should find a new career path; or that he presented a Letter of Warning and told her she needed to take it or transfer. ROI at 181, 184. However, the Postmaster heard the Supervisor tell Complainant that she was not good at her job and was giving her a chance to leave on her own or he would force her out, and he witnessed the Supervisor give Complainant the option to choose a Letter of Warning or a reassignment. Postmaster Deposition at 9-11, 13. The Coworker attested that, while he did not hear about the Letter of Warning, he heard the Supervisor tell Complainant that she would regret not taking a reassignment. Coworker Deposition at 169-70. In response to the allegation that the Supervisor stated that he would contact a Labor Specialist regarding discipline against Complainant, he averred that he never contacted Labor Relations, but he provided a memorandum to the LR Manager requesting a removal action for Complainant, or a demotion and reassignment to another installation.2 ROI at 195, 200-1. To the extent that the Agency contends that the Supervisor treated Complainant in the same manner as other employees, there is a genuine dispute. For example, the Coworker stated that Complainant “was getting the brunt of it at that time.” Coworker Deposition at 33. The Postmaster attested that Complainant was the “main focus” of the Supervisor’s ire, and that no one was treated as badly as Complainant. Postmaster Deposition at 14, 86. Complainant also believed that her treatment was not consistent with the way the Supervisor treated other supervisors, and he stated that he would make her life a “living nightmare.” ROI at 141. The Coworker confirmed that there were “many instances” when the Supervisor threatened to fire Complainant, and the threats to fire employees occurred daily. ROI at 256, Coworker Deposition at 41-2, 48. The Coworker added that the Supervisor said that he wanted to get rid of Complainant. Coworker Deposition at 26. The Postmaster emailed an unsworn statement noting that the Supervisor indicated that he would make Complainant’s “life a living hell,” if she did not accept a position at the Porter Carrier Annex. Complainant’s Opposition to Agency’s Motion for Summary Judgment, Exhibit 2. The Postmaster should provide sworn testimony for such statements he witnessed by the Supervisor. 2 The Supervisor disclosed that no discipline was issued to Complainant. Supervisor Deposition (March 25, 2025) at 38.
2025003706 9 Finally, the Agency concluded in an Initial Management Inquiry Process that Complainant’s allegations of harassment by the Supervisor were substantiated.3 Complainant’s Opposition to Agency’s Motion for Summary Judgment, Exhibit 1. The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have “a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses.” See EEO MD-110, 7-1; see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). An AJ should obtain additional testimony and evaluate credibility to determine if Complainant was subjected to conduct based on a protected class that was so severe or pervasive as to alter the conditions of her employment or that would reasonably dissuade protected EEO activity. In summary, there are simply too many unresolved issues which require additional information and assessment as to the credibility of the various management officials, coworkers, and Complainant, herself. Therefore, judgment as a matter of law for the Agency should not have been granted as to the alleged harassment. CONCLUSION Therefore, after a careful review of the record, including Complainant’s arguments on appeal, and arguments and evidence not specifically discussed in this decision, the Commission REVERSES the Agency’s final action and REMANDS the matter to the Agency in accordance with this decision and the Order below. 3 We note that the Agency did not examine the Supervisor’s motives and the question of whether Complainant was subjected to discriminatory or retaliatory harassment remains for the EEOC to determine.
2025003706 10 ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, a different Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.
2025003706 11 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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.
2025003706 12 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 (R0124) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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.
2025003706 13 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 __________ Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 17, 2026 Date
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