Hui E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

2019003185 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hui E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019003185 Hearing No. 450-2016-00103X Agency No. 4G-752-0010-15 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 7, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Letter Carrier at the Agency’s facility in Dallas, Texas. On January 13, 2015, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against her on the bases of race (Latino), national origin (Cuban), age (over 40), and in reprisal for prior protected EEO activity when: 1. On unspecified dates, she was instructed to finish the route in a shorter time than mail volume dictated, followed on her route, and constantly told to speed up; 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. 2019003185 2 2. On September 12, 2014, she arrived at work and her supervisor (S1) screamed at her and sent her home; 3. On September 15 and 16, 2014, her manager mocked her and compared her to an old man; 4. On September 23, 2014, she was told to resubmit medical documentation and not permitted to work that day; 5. On September 24, 2014, she was told that her doctor had to fill out another return to work form and she was not permitted to work; 6. On September 25, 2014, her manager screamed at her, told her that her doctor had to fill out another return to work form, told her that she was under her direct supervision, and did not allow her to work until she submitted medical documentation; 7. On September 29, 2014, after she turned in her medical documentation, her manager did not permit her to work and told her that she had to call the office every day at 7:00 a.m. if she was scheduled to work; 8. On October 4, 2014, she was told she was scheduled to work on October 4, 2014, but after arriving and waiting for one and a half hours, she was sent home and not compensated for the time there; 9. On October 12, 2014, her manager screamed at her in front of coworkers; 10. On October 14, 2014, she was given a performance interview; 11. On October 15, 2014, her manager told her that she was “lazy like the rest of the Latinos; 12. On October 22, 2014, she was denied leave, and then denied work when she arrived to work; 13. On October 27, 2014, she was asked if she wanted to drive her personal vehicle on her route and sent home when she replied “no;” 14. On November 3, 2014, she delivered mail until 8:30 p.m. and nobody answered the phone at the station or came to see if she was okay; 15. On November 4, 2014, S1 screamed at her, threatened to fire her, and said the EEO she filed would not help her; 2019003185 3 16. On November 12, 2014, she was given an investigative interview; 17. On November 13, 2013, S1 told her to work, and her manager did not permit her to work; 18. On an unspecified date, she received discipline; 19. On November 17, 2014, and continuing, her mini-bid request was denied; 20. On December 4, 5, 8, and 10, 2014, her work hours were reduced; 21. On a date to be specified, her request to be transferred to Brookhollow Station was denied; 22. On January 12 and 20, 2015, she was sent home when she refused to drive her own vehicle to deliver mail; 23. On January 13, 2015, her manager yelled at her and accused her of not following instructions; 24. On January 14, 2015, she was denied work; 25. On January 15 and 26, 2015, she was given an investigative interview; 26. On January 30, 2015, she was given an investigative interview and charged Absent without Leave (AWOL) for her absence on January 26, 2015; 27. On February 3, 2015, she was scheduled for a meeting, and when she arrived, management told her it was canceled, and she was no longer an employee; 28. On February 5, 2015, she became aware that her work hour description was changed three times for the same time period; 29. From January 26, 2015 to April 14, 2015, and subsequently, she was not scheduled to work; and 30. On May 22, 2015, and continuing, management could not locate her paycheck. 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 requested a hearing. The AJ held a hearing and subsequently issued a decision in favor of the Agency. 2019003185 4 The Agency issued its final order adopting the AJ’s conclusion that Complainant failed to prove unlawful harassment or discrimination as alleged. The instant appeal followed. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 2019003185 5 In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 January 22, 2020 Date