[Redacted], Alexia D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2020003872 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexia D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003872 Hearing No. 480-2018-00180X Agency No. 4F-900-0229-17 DECISION On June 23, 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 May 4, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 relevant time, Complainant worked for the Agency as a City Letter Carrier in Los Angeles, California. On May 26, 2017, Complainant filed a formal EEO complaint. Complainant claimed that the Agency unlawfully retaliated against her for prior protected EEO complaint activity (Agency No. 4F-900-0381-16) when: 1. In pay period 5 (2017), she was charged annual leave that she did not request; 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. 2020003872 2 2. On March 22, 2017, she was charged Absent Without Leave, (AWOL) for going to a medical appointment; 3. In April 2017, while loading her vehicle, management instructed Complainant to turn off her radio; 4. On unspecified dates, she was verbally abused by management; 5. On June 28, 2017, Complainant's Manager refused to sign her PS Form 1571 (Undeliverable Mail Report), slid the form off his desk onto the floor and began to take pictures of the mail Complainant brought back; and 6. On June 30, 2017, Complainant's manager instructed her to commit an unsafe act when he directed Complainant to cross a busy street without using a crosswalk. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 5, 2018 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 27, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. This appeal followed. ANALYSIS AND FINDINGS 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. 2020003872 3 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, 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. Complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her prior EEO complaint. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, we will assume, without so finding, that the responsible management officials were aware of Complainant’s prior EEO complaint. However, the investigation disclosed the Agency's management witnesses proffered legitimate non-retaliatory reasons for the disputed actions as detailed below. Concerning claim 1 regarding Complainant being charged annual leave that she did not request, the investigation discloses that the leave charge was made in error. According to Complainant's supervisor, other employees were similarly charged leave in error due to “entry errors” and/or “documentation submitted after TACS closing on Friday.” Specifically, the record establishes that Complainant's supervisor committed an error that was not based on any retaliatory motive and the matter was subsequently corrected. Regarding claim 2, the record reflects that Complainant failed to notify management of her absent and failed to submit medical documentation in support of her medical appointment. As a result of Complainant's failure to advise management of her absence or to submit supporting documentation of her absence, she was charged with AWOL. 2020003872 4 In claim 3, Complainant's supervisor observed that Complainant was not focusing on her duties while her radio was on, which caused Complainant to take more time to load her vehicle and delayed her departure time. Complainant's supervisor instructed Complainant to turn her radio off to maintain efficiency of the work. In claim 4, Complainant alleges that her supervisor told her she was “too old,” and asked, “why do you need help on your route?” The Agency acknowledges that Complainant's supervisor challenged Complainant on her need for assistance on her route. However, Complainant provided no evidence that she was subjected to harassment or verbal abuse regarding her age or in reprisal for her prior protected activity. In claim 5, Complainant contends that her supervisor refused to sign a form regarding mail she had failed to deliver. According to Complainant's supervisor, he would refuse to sign a form regarding undeliverable mail only after instructing Complainant not to deliver the mail. Complainant's supervisor acknowledges that he routinely takes pictures of mail that a carrier in Complainant's position did not deliver without a specific instruction not to deliver it, or without information regarding why the mail was not delivered. Finally, concerning claim 6, Complainant's supervisor denies instructing Complainant to cross the street in an unsafe manner on any occasion. Other than Complainant's bare assertion, there is no evidence in support of her claim. In sum, the overwhelming weight of the evidence fully supports the AJ’s determination that the disputed actions were not, in any way, motivated by retaliatory animus. Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her prior EEO activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were unlawfully motivated. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency's final order adopting the AJ’s finding of no discrimination without a hearing is AFFIRMED for the reasons discussed herein. 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. 2020003872 5 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. 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. 2020003872 6 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 October 28, 2021 Date