[Redacted], Alice R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 23, 2021

Appeal No. 2020004063 (E.E.O.C. Jun. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alice R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004063 Agency No. 1E-571-0010-19 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 4, 2020, finding no discrimination concerning her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, P-06, at the Agency’s Sioux Falls Processing and Distribution Center in Sioux Falls, South Dakota. On July 13, 2019, Complainant filed an EEO complaint alleging that she was subjected to discriminatory harassment based on disability and in reprisal for prior 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. 2020004063 2 1. On dates to be specified, starting August 30, 2018, management has made an issue about how she does her job; 2. From August 30, 2018, and ongoing until her removal, management failed to intervene when she reported being targeted and verbally attacked by coworkers; 3. On March 4, 2019, she was issued a 7-Day Suspension for attendance; 4. On March 24, 2019, someone adjusted her postal chair so no one could sit in it; 5. On March 26, 2019, she was issued a 14-Day Suspension for attendance; 6. On April 23, 2019, her request for a schedule change was denied; 7. On April 24, 2019, she reported to management inappropriate comments made to her by a coworker and she was told to sit in her car and calm down; 8. On May 22, 2019, she was put on Emergency Placement after reporting having been verbally attacked by a coworker; 9. On May 23, 2019, an investigative interview was conducted with her regarding improper conduct and subsequently on June 4, 2019, she received a Notice of Removal for improper conduct; and 10. On June 20, 2019, she incurred an on-the-job injury and management did not process her paperwork until July 8, 2019, after her removal. Complainant does not challenge the Agency’s framing of her claims. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant indicated that she had permanent medical conditions on her left hand and left ankle, head injury, severe depression, panic disorder, and post-traumatic stress disorder. Complainant’s psychological conditions were diagnosed in 1992, and her physical conditions were diagnosed on August 19, 2014. After her job-related injury on August 19, 2014, the Agency provided Complainant with modified work within her restrictions, i.e., lifting, standing, and walking. Her modified duties included sorting manual letters, working in revenue protection, caller service, and backing up the gatekeeper and postage due. Regarding claims 1 and 2, on February 27, 2019, Complainant’s coworker (C1), who also had medical restrictions, complained to S1 that C1 was unable to grasp the mail for dispatch when Complainant filled C1’s mail slots too full. S1 merely asked Complainant not to fill the mail slots too full. 2020004063 3 S1 indicated that C1 and Complainant had verbal confrontations on a few occasions, and they reported that they were harassed by each other. S1 immediately interviewed both on those occasions, and they both agreed that they would be able to continue working together. S1 thus took no further action. Regarding claim 3, Complainant was issued a 7-Day Suspension for her violation of the requirement for regular attendance. She was absent for 96 hours of unscheduled leave without pay from January 31, 2019 to February 15, 2019. The record indicates that the suspension was reduced to a Letter of Warning on September 26, 2019, via a grievance. Regarding claim 4, S1 indicated that Complainant did not work in an isolated area, and since she was not at work much, her chair was probably used by another employee who worked in the unit. Regarding claim 5, Complainant was issued a 14-Day Suspension for her violation of the requirement for regular attendance. She was absent on seven separate occasions from February 19, 2019 through March 19, 2019. Regarding claim 6, S1 indicated that Complainant requested to be moved to a Tour 2 schedule from Tour 1. S1 submitted the request to Tour 2 Manager. Tour 2 Manager denied the request because Tour 2 did not have work available within Complainant’s restrictions, i.e., working on manual letters. Regarding claim 7, S1 was not aware of the incident. S1 indicated that Complainant was not on duty on April 24, 2019. Complainant’s manager (M1) indicated that Complainant did not complain about C2’s comments as alleged. There is no evidence that any supervisor or management official told Complainant to sit in her car. M1 stated that M1 was aware that on an unspecified date, Complainant left her assigned work area on her own and did not return for an hour and 15 minutes. Regarding claim 8, both Complainant and C1 were placed on Emergency Placement for improper conduct for their verbal altercation on May 22, 2019. Regarding claim 9, S1 indicated that Complainant was warned about her improper conduct on several occasions, but her conduct did not improve. Considering Complainant’s February 5, 2019 Letter of Warning for unsatisfactory attendance and her March 2019 suspensions, described above, S1 decided to issue the Notice of Removal. The record indicates that the Notice of Removal was reduced to a 14-day suspension on August 23, 2019, via a grievance agreement. Regarding claim 10, the Agency denied delaying the processing of Complainant’s Office of Workers’ Compensation Programs (OWCP) claim. Complainant reported her injury (i.e., she felt a pop on her left shoulder while picking up a tray during her work) at 11:30 pm on July 20, 2019, to an identified manager (M2). M2 told her to seek medical assistance immediately. Complainant indicated that she told M2 she wanted to return to work instead. 2020004063 4 Next day, when Complainant reported to M2 that the pain did not go away, M2 immediately gave her the paperwork to submit for her injury. On June 22, 2019, Complainant submitted her paperwork to an identified supervisor (not S1) who in turn placed it on S1’s desk. The record reflects that Complainant’s Form CA-1 was ultimately completed by S1, and it was forwarded to and was received by the OWCP on July 9, 2019. Complainant filed the instant appeal. On appeal, Complainant indicated that she returned to work in September 2019, and C1 no longer worked in her work area. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), 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), 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"). In the instant case, assuming without deciding (for the purposes of this decision) that Complainant is an individual with a disability, she does not allege that she was denied a reasonable accommodation for her disability. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020004063 5 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. 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). 2020004063 6 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 June 23, 2021 Date