[Redacted], Alaina P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020004707 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alaina P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020004707 Agency No. 4K-290-0082-19 DECISION On July 13, 2020, 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 17, 2020, final decision 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. BACKGROUND During the period at issue, Complainant worked as a Laborer Custodian, Grade Level 4 at the Agency’s Fairfield Station facility in Rounds, South Carolina. On July 9, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity, as well as sex (female), and age (49-50 during the period at issue), which were later added during the investigation, when: 3. On or about February 19, 2019, she became aware that management had assigned her days off different from those assigned to her position in webCOINS [Web- based Complement Information System].2 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. 2 2020004707 4. In August or September 2018, she became aware that management has allowed a Highway Contractor to perform duties on Daufuskie Island that should have been assigned to her or to other maintenance employees. 5. In Summer 2018, Summer 2019, and on September 21, 2019, she was required to work on defective equipment. 6. On May 22, 2019, she was issued a Notice of 14-Day Suspension. 7. On May 24, 2019, the Postmaster yelled at her, put her hands in her face, and pushed her body all over her, while spitting in her face. 8. On or about June 8, 2019, she was charged Leave without pay (LWOP), rather than being paid the annual leave that she requested. 9. On June 21, 2019, she was issued a Notice of 14-Day Suspension. 10. On or about July 12, 2019, she was assigned to pull weeds and wash exterior windows in high temperatures, and her Supervisor denied her request for medical attention. 11. On July 10, 2019, her Manager raised her voice to her, banged on a door when she told her it was too hot for her to work outside, and threatened her with discipline. 12. On August 12-13, 2019, her Manager refused to pay her for time spent testifying in a National Labor and Relations Board (NLRB) case. 13. On or about August 3, 2019, she was given an Official Discussion. 14. In June or July 2019, management incited other employees against her; 15. On August 19, 2019, management gave her a pre-disciplinary interview (PDI) after they instructed her to change the lights in the PO Box section. 2 The Agency began numbering the claims at 3 and stated in its final decision that Complainant included two additional claims. According to the Agency, these two claims were dismissed for failure to state a claim. The record is not entirely clear on what the other two claims were, and Complainant does not appeal the dismissal of these two claims. Therefore we will analyze the 14 listed claims, which the Agency identified as “Claims 3 - 17.”. 3 2020004707 16. On numerous dates from May to September 2019, management failed to provide her with proper safety equipment or otherwise subjected her to an unsafe work environment. 17. On August 31, 2019, she was issued a Notice of Removal and, on September 30, 2019, management asked for her badge and ID and escorted her from the Facility. After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission AJ. After Complainant failed to request a hearing or a final agency decision, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant states that she is an Agency career employee and that she is in the final stage of the Grievance Arbitration Procedure for the 14-Day Suspension and for Failure to Follow Instructions/Notice of Removal. Complainant avers that one of the reasons she was discriminated against was because she is a Northerner, from New York, and outspoken, while management was comprised of Southerners. Complainant also states that she has already won a Grievance Arbitration Procedure for Failure to Follow Instructions/Improper Conduct. Complainant also argues that one of the responsible management officials (RMO) has since been demoted and removed from the Fairfield Station. Complainant avers that the new Fairfield Station Manager is biased against her, along with the other RMOs named in her complaint. Complainant details her ongoing discussions with the Station Manager, and other appeals she is pursuing. Complainant states that she is unsure of the Agency’s EEO office’s neutrality, and argues that the Agency’s management, along with its EEO office, is violating Grievance Arbitration Procedure Articles, handbook and manual articles, and the Collective Bargaining Agreement. Complainant also details further grievances she has filed against Agency management regarding her removal and numerous other matters. Complainant argues that the stress of the situation has caused her post traumatic stress disorder (PTSD), which had an impact upon her attendance. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 4 2020004707 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claims 3 and 4 In Claim 3. Complainant claimed that on or about February 19, 2019, she became aware that management had assigned her days off different from those assigned to her position. The Agency, however, addressed the WebCOINS printout, submitted by Complainant, listing Complainant’s days off as Sunday and Monday. The record does not support Complainant’s contention that her scheduled days off were Sunday and Thursday, or that management refused to change her schedule. The Agency’s legitimate, nondiscriminatory reason for Complainant’s days off being Sunday and Monday was that WebCOINS listed her days off as Sunday and Monday. The Customer Service Supervisor (RMO1) (Race - Black, Sex - Male, Age - over 40 years old, prior EEO activity) testified that Complainant had been taking off Sunday and Thursday, prior to his arrival in that position, but that her days off were listed as Sunday and Monday. Complainant does not refute the Agency’s reason as pretext for discrimination or harassment. In Claim 4, Complainant stated that Agency management allowed a Highway Contractor to perform duties on Daufuskie Island Post Office (DIPO) which should have been assigned to Complainant or to other maintenance employees. Complainant testified that she believed RMO1, as well as the Customer Service Manager (RMO2) (African-American, female, under 40 years of age, no prior EEO activity), and Postmaster (RMO3) (Black, female, over 40 years of age, prior EEO activity) were involved in this action.3 The record shows that there was a contract in place for the DIPO to be operated, 20-hours per week, by a contractor. Complainant testified that she was aware that DIPO did not have an on-site Laborer Custodian. The Agency has presented a legitimate, nondiscriminatory reason for its action - it has a separate contract for DIPO’s maintenance. Complainant has not presented evidence to demonstrate that the Agency’s reason is pretext for discrimination and/or harassment. Additionally, the record does not reflect that the Agency’s determination to contract out the maintenance of DIPO was in any way connected to Complainant’s protected bases or in an attempt to harass Complainant. 3 In her affidavit, RMO3 stated that she was the Manager Installation Head during the events subject to the instant case. However, RMO3 is often referred to by her current position of Postmaster. For the sake of continuity and clarity, she is referred to as the Postmaster. 5 2020004707 Claims 5 and 6 Complainant’s Claim 5 stated that, in the Summer 2018, Summer 2019, and on September 21, 2019, she was required to work on defective equipment. The Agency responded that a PS Form 1767 dated August 20, 2019, reporting that Complainant’s riding lawnmower was not working, was contained in the record. Management did not respond to the August 20, 2019 PS Form 1767. The Agency also stated that another PS Form 1767 dated September 21, 2019, reporting issues with Complainant’s edger, was not answered by management. The record contains receipts for a repair to a riding mower dated June 15, 2019 and for the hedger and weed eater dated July 20, 2019. Both of those repair receipts are dated prior to Complainant’s PS Form 1767 of August 20, 2019 and September 21, 2019. RMO1 testified that he had no part in issuing Complainant defective equipment, and RMO2 denied that Complainant worked using defective equipment. RMO3 testified that Complainant was not required to work using defective equipment, and that inoperable equipment was sent out to be repaired or replaced. Other than management’s testimony, the record lacks documentation regarding the two aforementioned PS Form 1767 Complainant submissions. However, Complainant does not address this claim in her appeal, as such Complainant does not demonstrate by a preponderance of the evidence that she was subjected to discrimination or harassment with relation to Claim 5. In Claim 6, Complainant stated that, on May 22, 2019, she was issued a Notice of 14-Day Suspension for attendance problems. RMO2 testified that she issued this notice because Complainant incurred 32 hours of unscheduled sick leave between April 29, 2019 and May 10, 2019, which management stated violated the Employee and Labor Relations Manual (ELM). The notice also indicated that Complainant had been issued a previous Letter of Warning and a 7-Day Suspension for failure to be regular in attendance. The Agency articulated a legitimate, nondiscriminatory rationale for its issuance of the Notice of 14-Day Suspension. Complainant does not address this notice, and as such, she does not provide evidence that the Agency’s rationale is pretext for discrimination against her or pretext for harassment. Claims 7, 8, and 9 In Claim 7, Complainant stated that, on May 24, 2019, the Postmaster yelled at Complainant, put her hands in Complainant’s face, and pushed her body all over Complainant, while spitting in Complainant’s face. The record contained testimony that supported both Complainant’s and management’s account of the incident. The Agency found, however, that there was insufficient evidence, to demonstrate that the incident occurred as Complainant stated. Complainant does not address this claim in her appeal, and therefore, she does not demonstrate by a preponderance of the evidence that she was subjected to conduct that was severe or pervasive, based on her protected bases. Complainant testified, in Claim 8, that on or about June 8, 2019, she was charged LWOP rather than being paid the annual leave that she requested. The Agency’s articulated legitimate, nondiscriminatory rationale for management’s action was that Complainant requested 29 hours of Emergency Annual Leave (EAL) on June 3, 2019, and another 8 hours of EAL on June 8, 6 2020004707 2019. The record shows that Complainant requested EAL on June 8, 2019, which RMO1 initially approved. The record also demonstrated, however, that Complainant was notified by a letter from RMO2, on June 19, 2019, that Complainant was required to provide documentation to substantiate her use of EAL. Complainant did not provide such documentation. Because of Complainant’s failure to submit requested documentation, management changed her EAL to LWOP. Complainant does not address Claim 8 in her appeal, and in failing to do so, she does not demonstrate that the Agency’s rationale is pretext for discrimination and/or harassment based on Complainant’s race, sex, age, and/or reprisal. On June 21, 2019, Complainant was issued another Notice of 14-Day Suspension. The Agency’s articulated legitimate, nondiscriminatory reason for the issuance of the Notice of 14-Day Suspension the incident on May 24, 2019. While Complainant includes documentation from a grievance process about this claim, she does not address the Agency’s articulated legitimate, nondiscriminatory reason: that the June 21, 2019 Notice of 14-Day Suspension was in response to Complainant’s argument with a management official. Complainant bears the burden of demonstrating that the Agency’s rationale was pretext for discrimination against her. The finding of a separate tribunal does not bear the weight of Complainant submitting evidence to demonstrate, by a preponderance of the evidence, that the Agency’s rationale was pretext. Claims 10 and 11 Complainant testified that, on or about July 12, 2019, RMO2 assigned her to pull weeds and wash exterior windows in high temperatures. Complainant also testified that RMO1 denied her request for medical attention. The Agency’s articulated legitimate, nondiscriminatory reason for these actions. Weed pulling, and exterior window washing were duties negotiated for Complainant’s duties in her position. The record also shows that RMO1 requested that Complainant wait until he finished getting the carriers ready, to assist with her medical need for poison ivy medication, and Complainant was able to get another manager to assist her. There is no evidence that Complainant was denied medical care. Additionally, the record does not support that Complainant was assigned with weed pulling and exterior window washing due to discriminatory animus or harassment. Complainant does not rebut the Agency’s articulated rationale, and in failing to do so, she fails to establish that the Agency’s articulated rationale is pretext for discrimination or harassment. In her Claim 11, Complainant testified that, on July 10, 2019, RMO2 raised her voice to Complainant, banged on a door when Complainant told RMO2 it was too hot to work outside, and RMO2 threatened Complainant with discipline. The Agency’s responded that Complainant’s duties required, as part of her job, to work outside. RMO2 denied yelling at Complainant, banging on the door, or threatening Complainant. Complainant does not address this claim in her appeal, and as such, Complainant does not provide evidence that the Agency’s articulated legitimate, nondiscriminatory reason is pretext for discrimination or harassment. 7 2020004707 Claim 12 Complainant testified that, on August 12-13, 2019, RMO2 refused to pay her for time spent testifying in a NLRB case. RMO2 testified that she inquired to the legal department whether or not Complainant was to be paid while testifying in the NLRB case. The legal department indicated that the Agency was not required to pay her. RMO2 testified that, while Complainant requested leave for union time off to testify, she was advised that the Agency does not pay for that and Complainant would have to use her own leave. The legal department made the determination, which was not connected to Complainant. Additionally, Complainant has not presented evidence to demonstrate that the legal department’s policy decision was in anyway connected to her personally, let alone that it was motivated by discrimination against her based on her race, sex, age, or retaliation, or to subject Complainant to harassment. Claim 13 Complainant testified that, on or about August 3, 2019, she was given an Official Discussion. RMO1 testified that Complainant received an official discussion about her absences. RMO1 testified that Complainant had three unscheduled absences within five days. Complainant listed individual who she believed to be similarly situated to her, who had various disciplinary and misconduct issues, but they did not receive official discussions. The individuals that Complainant listed were not effective comparators. Additionally, Complainant does not address this claim in her appeal, and again does not provide evidence to support that the Agency’s articulated rationale is pretext for discrimination against her, or for harassment against Complainant. Claim 14 Complainant stated that, in June or July 2019, RMO1 incited other employees against her. RMO1 testified that Complainant asked RMO1 to request that the other employees not spit in the trash cans and not to put other liquids in the trash cans. RMO1 stated that some employees started going back and forth about whose job it was to clean. RMO1 testified that there was “not a riot,” and RMO2 testified that she was not present, but later collected witness statements. RMO2 further testified that she had a talk with the other employees regarding the issue raised by Complainant, but that Complainant inserted herself into the discussion and became argumentative. Management and witness statement support the assertion that Complainant became argumentative and escalated the matter. Complainant does not address this claim or the Agency’s response in her appeal. The record does not support Complainant’s version of events, and she does not present evidence to demonstrate that the Agency’s articulated rationale is pretext for discrimination or harassment. Claim 15 Complainant testified that, on August 19, 2019, RMO1 gave her a PDI after he instructed Complainant to change the lights in the P.O. Box section. Complainant stated that it was too high for her to complete the assignment. 8 2020004707 RMO1 testified that, on August 12, 2019, Complainant was instructed that she had until Friday, August 16, 2019, to change the lights in the P.O. Box section. RMO1 also stated that Complainant was given a PDI on August 19, 2019, because she had not completed the task. RMO1 testified that Complainant did not need a lift to complete the task. RMO2 testified that RMO1 conducted the PDI and that Complainant was offered a ladder and a spotter to complete the task. On appeal, Complainant states that she filed a non-compliance grievance in response to RMO1 and RMO2 ordering her to change the lights, and states that two months after her removal, the lights remained unchanged. Complainant testifies that management had to put in work orders for an Area Maintenance Technician to change the lights. She avers that putting in an order for an Area Maintenance Technician to change the lights was the action she originally suggested to management. Whether or not management was subsequently incorrect in its conducting of a PDI with Complainant, Complainant has not demonstrated that management did so with a discriminatory motive. Poor management, absent discriminatory animus, is not a cause of action. The Agency has articulated its legitimate, nondiscriminatory rationale for conducting the PDI, and Complainant has not provided evidence to demonstrate that the rationale is pretext for discrimination. Claim 16 Complainant testified that, on numerous dates from May to September 2019, management failed to provide her with proper safety equipment or otherwise subjected her to an unsafe work environment. Management testified that Complainant submitted numerous PS Forms 1767. The record does not support Complainant’s assertion that management was targeting her and subjecting to the use of defective and unsafe equipment. Instead, the record reflects that repairs to or replacement of equipment occurred. Complainant does not provide evidence to support her this claim. Claim 17 Finally, Complainant testifies that, on August 31, 2019, she was issued a Notice of Removal and, on September 30, 2019, management asked her for her badge and identification and escorted her from the facility. The management officials testified that Complainant’s numerous attendance and behavioral problems, along with her refusal to perform tasks were the cause for her removal. The Agency’s articulated legitimate, nondiscriminatory rationale for Complainant’s removal. Complainant states that she has successfully filed and won a grievance on this matter, and states that the management officials were discrimination against her, Complainant has not provided evidence to support this contention. Mere assertion that she was subjected to discriminatory animus is insufficient to satisfy her burden of demonstrating that the Agency’s rationale is pretext for discrimination. To the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. 9 2020004707 Complainant must also prove that the conduct was taken because of her protected basis - in this case, her race, sex, age, or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support her claim that his treatment was the result of her race, sex, age, or retaliatory animus. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) 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 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 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, a 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. 10 2020004707 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. 11 2020004707 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 June 7, 2021 Date