EEOC Appeal 2020000202

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Celinda L.,1
Complainant,
v.
Louis DeJoy,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 2020000202
Hearing No. 510201900162X
Agency No. 4G330025518
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 8,
2019 Final Order concerning an 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Manager, Customer Service (“MCS”), EAS-24, at the Hollywood Main Post Office, located in
Hollywood, Florida.
On June 30, 2018, Complainant filed an EEO complaint alleging discrimination and harassment
by the Agency on the bases of race (Hispanic), sex (female), age (52), and reprisal for prior
protected EEO activity 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 or about February 25, 2018 and continuing, her leave requests have been denied,
2. 	On or about May 16, 2018, she received a Notice of a Proposed Letter of Warning
in Lieu of a Fourteen-day Suspension ("LOW"), and,
3. 	On or about May 17, 2018, she was instructed to surrender her Agency-issued
mobile device and office keys, then was directed not to contact any employee of
the Hollywood Main Post Office.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant
timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint
did not warrant a hearing and over Complainant's objections, issued a decision without a hearing
on August 2, 2019.
The record developed during the investigation shows the following evidence:
Complainant’s first level supervisor (“S1,” male, Hispanic, 49) was a Manager, Customer Service
Operations (“MCSO”), EAS-25. The Hollywood Postmaster (“PM,” male, Caucasian, 54) was her
second level supervisor. Both S1 and PM are identified as the responding management officials in
this complaint. By Complainant’s account, the underlying reason for her reprisal claim is that S1
and PM were retaliating against her for applying for positions in different districts.
Between February and April 2018, Complainant submitted three requests for annual leave with the
stated reason of “moving.” On or about February 9, 2018, Complainant submitted her first request
(April 30, 2018 through May 4, 2018), which S1 approved. On April 4, 2018 Complainant
submitted the second request. S1 denied this request when Complainant informed him that she
wrote the incorrect dates (April 7, 2018 through April 11, 2018) on the request form. On April 6,
2018, Complainant submitted a third request (May 7, 2018 through May 11, 2018). S1 testifies
that he denied Complainant’s third request, because one of Complainant’s colleagues (“C1”
female, African-American, approximately 47 years old), a Level 21 MCS, had already requested,
and been approved for leave for May 7, 2018. S1 and PM testify that due to operational needs,
they would only schedule one Manager to take annual leave at a time. S1 allowed Complainant to
arrive early on May 7, 2018 so that she could leave early, as she had a moving truck scheduled
that day. S1 also approved Complainant for annual leave on May 8 and 9, 2018.
On April 24, 2018, Complainant was subjected to a pre-disciplinary interview with S1, who made
allegations that she describes as a “serious defamation of character.” The resulting LOW, dated
May 14, 2018, charged Complainant with “unacceptable performance” including five instances in
March 2018, where she failed to address performance issues among her subordinates, causing
policy compliance issues that were later resolved.

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The LOW also charged Complainant with “unacceptable conduct,” stating that Complainant
instructed one of her subordinates, a Level 17 Supervisor (“C2,” female, African-American, age
not specified) to change an instance of sick leave in the Agency’s timekeeping system (“TACS”)
from “unscheduled” to “scheduled.” Although C1 corroborates the allegation, Complainant
disputes ever telling C1 to change her TACS record.
On May 17, 2018, Complainant was on a 90-day detail at another Agency facility, when S1 and
PM met with her to request that she return her Agency-issued local mobile device, and her keys to
the Hollywood Main Post Office. PM explained to Complainant that they needed the mobile device
and keys to give to Complainant’s substitute at the Hollywood Main Post Office while
Complainant completed the detail. S1 also wanted to ensure the mobile phone was kept in his
district, and preserve potential evidence regarding changes to Complainant’s leave. S1 also
instructed Complainant not to speak with her subordinates during the detail.
The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. 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. 	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. (as revised, August 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).
In order 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.
On appeal, Complainant appears to argue that summary judgment was improper because the record
is not sufficiently developed. See, e.g. Anisa U. v. United States Postal Serv., EEOC Appeal No.
0120141580 (Jul. 20, 2016) (finding the Agency’s decision, arrived at without a hearing, improper
because the investigative record, lacking data on comparator employees, was inadequate, as this
information was crucial to the complainant’s prima facie case).

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We reviewed the detailed list of issues Complainant argues still need to be investigated, and found
them to be either outside the scope of the accepted claims in her complaint, or concerned evidence
that was peripheral to the issues, and insufficient to raise a question of material fact warranting a
hearing. In other words, had the AJ provided Complainant an opportunity to further the
investigation through discovery, the information she sought would not have prevented dismissal
by summary judgment. We find the AJ properly determined that the record was sufficiently
developed for a Decision Without a Hearing.
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she 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. 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. Texas Dep’t. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. 	St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993).
Reprisal Claim
To establish a prima facie case of reprisal, Complainant may show that: (1) she engaged in
protected activity, (2) the Agency was aware of the protected activity, (3) after Complainant
engaged in the protected activity, Complainant was subjected to adverse treatment by the Agency,
and (4) a nexus exists between the protected activity and the adverse treatment. See Kristy E. v.
Dep’t of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmire
v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
It is undisputed that Complainant has not met the first requirement of the prima facie analysis for
reprisal. The instant complaint is Complainant’s first EEO filing, and there is no evidence that she
engaged in other prior activity protected by employment discrimination laws. By Complainant’s
own account on appeal, as a postal employee of 31 years, 12 of which in her position as an MCS,
she has not felt the need to engage in EEO activity before this complaint.
Race, Sex and Age Claims
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. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No.

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05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No.
05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence. Complainant v. United
States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006). However, the Agency, as the
employer, has broad discretion to set policies and carry out personnel decisions, absent evidence
of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No.
05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine
how best to manage its operations and may make decisions on any basis except a basis that is
unlawful under the discrimination statutes.) In other words, this Commission "does not second-
guess the business judgment of Agency officials regarding personnel decisions without a
demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506
(Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013).
For Claim 1, payroll records, leave request slips, and testimony by S1, who was responsible for
approving Complainant’s leave requests, contradict Complainant’s allegation that her leave
requests have been continuously denied since February 25, 2018. For the two instances where S1
denied Complainant’s leave requests denied during the relevant time frame, the Agency provided
legitimate nondiscriminatory explanations. Complainant does not dispute that the Agency’s
legitimate nondiscriminatory reason for denying her leave request because it contained incorrect
dates. However, Complainant argues that S1’s explanation of “operational needs” for denying the
corrected request, was pretextual.
According to Complainant, C1’s leave “had nothing to do with” her, as C1 had her own office,
with a full staff of supervisors and often another manager would assist her, so her absence would
not operationally impact the facility such that Complainant could not also take leave. However,
Complainant has not shown that the policy of scheduling only one manager for annual leave at a
time 	to 	ensure 	sufficient 	coverage 	was 	unreasonable 	in 	terms 	of 	business 	judgement.
Complainant’s argument appears to support the facility policy by acknowledging that the scope of
her responsibilities, which often entailed covering Level 25 duties, was more extensive than that
of C1, a Level 21 manager. Complainant’s allegation is further undermined, as she was approved
for leave on May 8 and 9, 2018, and, when she explained that she already scheduled movers for
May 7, 2018, she was permitted to report early and leave early to meet the movers. Complainant
has not offered any argument or evidence to show a question of fact exists to warrant a hearing on
this matter.
For 	Claim 	2, 	the 	Agency’s 	legitimate 	nondiscriminatory 	reasons 	for 	issuing 	the 	LOW,
“unacceptable performance” and “unacceptable conduct,” are supported by Agency-wide policies
in the 	Postal Service Employee and Labor Relations Manual (“ELM”), and Complainant’s
position description.

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The Agency also explained that a Level 24 MCS is “at the highest echelon” of management, so
those holding the position have extensive responsibility and are held to higher standards. Among
other things, the “unacceptable performance” included instances where Complainant did not
follow up or take corrective action after a manager and a supervisor (her subordinates) violated
Agency procedures. Complainant’s response that the actions at issue occurred on dates she was
not present at the facility, and that she reported the manager and supervisor to OIG, ignores
evidence provided by the Agency demonstrating that following up on the actions of her
subordinates was part of her supervisory responsibilities. We find this sufficient grounds for
issuing a LOW.
The Agency also establishes that the “unacceptable conduct” of directing a subordinate to change
an attendance record in TACS, which can result in removal, is a legitimate, nondiscriminatory
reason to issue a LOW. While the record reveals conflicting testimony by S1 and Complainant, it
is undisputed that C2 made the change. Complainant raises a number of questions, such as how
C2 achieved access to a higher level on TACS, to cast doubt on the LOW finding of “unacceptable
conduct,” but no evidence to create an issue of material fact warranting a hearing. We also do not
find the Agency’s decision not to discipline C2 sufficient evidence of pretext, given the Agency’s
legitimate nondiscriminatory explanation C2 was protected from retaliation under Agency policy
and Whistleblower laws.
For Claim 3, the Agency’s legitimate nondiscriminatory reason for Complainant’s Agency-issued
mobile device, along with her office keys was so they could provide them to Complainant’s
substitute for the duration of Complainant’s 	detail. PM also testified that he instructed
Complainant to turn in her Agency-issued mobile device “for two reasons. 1) [PM] knew she was
applying for positions outside the district and, having just transferred into the South Florida District
[PM] knew how difficult it was to transfer cell phones between districts. 2) because she was
disputing making certain phone calls to her supervisors, [PM] wanted to see her phone call and
text records to preserve any evidence that may be contained in them.” S1’s legitimate
nondiscriminatory reason for telling Complainant not to speak with her subordinates at the
Hollywood 	Main 	Office 	was 	that 	he 	received 	complaints 	from 	her 	subordinates 	about
Complainant’s demeanor toward them, including her phone calls. Additionally, he reasoned, that
Complainant’s subordinates at the Hollywood Main Office would not be reporting to her while she
was serving the detail, so there was no reason for Complainant to communicate with them.
Complainant argues that PM and S1 acted improperly because they allegedly did not consult with
HR or IT before confiscating her Agency-issued mobile device, which she emphasizes was
“personally” assigned to her. She also challenges the manner in which S1 and PM retrieved the
office keys and phone, and how S1 told her not to speak with her subordinates at Hollywood Main
Post Office. Complainant testifies that S1 and PM treated her “worse than a criminal” when they
requested her Agency-issued mobile phone and office keys. As they were both male, Complainant
interpreted PM and S1’s decision to meet with her in a separate office located in a secluded area
of the facility where she was detailed to be an “intimidation tactic.” Likewise, she felt PM was
trying to intimidate and retaliate against her when he told her that if she did not hand over her
phone, an unfavorable decision would be issued on a pending disciplinary action against her.

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Complainant felt bullied and humiliated, and based on personal observation, believes that
individuals outside her protected classes would not have been subjected to the same treatment.
While we see how PM and S1’s actions may have felt intimidating or upsetting, Complainant has
not shown that the Agency’s proffered legitimate nondiscriminatory reasons for its actions alleged
in Claim 3 were pretext for discrimination. In terms of business judgment, taking Complainant’s
Agency-issued mobile device and keys to her office on Agency property, while instructing her not
to speak with her subordinates while she was not supervising them, are not unreasonable actions.
To the extent Complainant argues that her rights were violated when the Agency “confiscated
personally assigned items” and “robbed [her] of personal information [contained in her Agency-
issued cell phone,” we find the actions fell within the scope of Agency authority, and business
judgment, as those items are Agency property and potentially contained evidence for an
investigation. Complainant has not provided any other evidence of pretext, or to support her
statements that PM and S1 were motivated by discrimination, that would allow us to find a question
of fact warranting a hearing.
CONCLUSION
Based on a thorough review of the record and the parties’ contentions on appeal, including those
not specifically addressed herein, we AFFIRM the Agency’s Final Order adopting the AJ’s
decision.
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).
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.

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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 16, 2020
Date