[Redacted], Angeles C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2019003992 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angeles C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019003992 Agency No. 1G-731-0032-16 DECISION On May 24, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 1, 2019 final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked as a Mail Processing Clerk at the Agency’s Oklahoma City Processing and Distribution Center in Oklahoma City, Oklahoma. On December 3, 2016, Complainant filed a formal EEO complaint alleging the Agency discriminated against her based on race (Asian), national origin (Vietnamese-Chinese), color, sex (female), disability, and in reprisal for prior EEO activity when: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 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-14 2019003992 2 1. on August 11, 2016, her supervisor bumped into her on two occasions, and after she reported the incident on August 11 and 31, 2016, and September 13, 2016, management failed to properly address the matter; 2. on August 14, 2016, a co-worker spoke to her in a loud demeaning manner which she believes was condoned by management; 3. on September 28, 2016, she was charged with intimidating a co-worker; 4. on October 27, 2016, her supervisor informed a co-worker that she filed too many EEO complaints; 5. since January 1, 2017, her request for light duty has been denied, and she has been only provided with 4 hours of work daily; 6. on December 11, 2016, her manager condoned a co-worker harassing her while working on a machine; 7. on December 24, 2016, her supervisor yelled and harassed her after allowing a co- worker to take postcons from her machine;3 8. on January 1, 2017, she was harassed while at her machine; 9. on January 1 and 5, 2017, her medical records were copied and placed in an unsecured file cabinet; 10. on January 1, 2017, she was questioned about her personal medical information; 11. on January 10, 2017, she was questioned in the hallway while leaving the main office; 12. on January 10, 2017, she was questioned what she was doing in the union office; 13. on January 11, 2017, she was questioned why she stayed later; and 14. on January 16, 2017, she was spoken to in a loud manner. Following an investigation, Complainant initially requested a hearing before an EEOC Administrative Judge. Complainant, however, later withdrew the hearing request. On April 1, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination. 3 The record reflects that a “postcon” is a wheeled metal container used at USPS facilities. 2019003992 3 The instant appeal followed. ANALYSIS AND FINDINGS Harassment/Hostile Work Environment To establish a claim of 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). 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, her race, color, national origin, sex, disability or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant identified her disabilities as headache, stomach pain, insomnia, anxiety, Post- Traumatic Stress Disorder, body/muscle/emotional stress, neck/shoulder pain, cervical, thoracic, lumbar spine, depression, and anxiety. The Supervisor Distribution Operations (African-American, black, American, female) stated that she does not recall bumping into Complainant. Another Supervisor Distribution Operations (African-American, black, American, female), also Complainant’s immediate supervisor, stated that she was not aware of Complainant’s co-worker spoke to Complainant in a loud demeaning manner which she believed was condoned by Agency management. She noted that Complainant had raised concerns about the Lead Clerk and she does not respect his position as Lead Clerk. With respect to Complainant’s allegation that her supervisor informed a co-worker that she filed too many EEO complaints, the supervisor stated that she did not say anything like that. Specifically, the supervisor stated that there was no discussion of personal EEO complaints with anyone other than the person who filed the complaint. 2019003992 4 Regarding Complainant’s allegation that the supervisor yelled and harassed her after allowing a co-worker to take postcons from her machine, the supervisor noted there were occasions in which Agency management need to balance the mail and if a postcon was moved, it was because another employee did not have sufficient mail at another machine. The supervisor further noted that Complainant had a habit of storing postcons of good mail in the back of her work-station in order to have good productivity. The supervisor stated that with regard to Complainant’s allegation that her medical records were copied and placed in unsecured file cabinet, she does not know what Complainant was referring to. She stated at that time, Complainant handed her with a CA-2 packet but she did not look into the packet because she was busy with customers. The supervisor stated that when she had an opportunity to review Complainant’s packet, she personally called Complainant up to the desk and explained that it was not necessary to give her all her medical documentation that did not pertain to the CA-2. Furthermore, the supervisor asserted that she put Complainant’s packet in her drawer and secured it with a lock. The Manager, Distribution Operations (Caucasian, white, female, American) noted that on December 11, 2016, she spoke to Complainant and her co-worker because they accused each other of not performing their duties. The co-worker indicated that Complainant was off the machine and not sweeping the bins while Complainant was upset with him because she felt that he left too much mail for her to sweep from the machine. Furthermore, the Manager determined that Complainant was not being harassed, but concluded that there was a dispute about duties. Another Manager, Distribution Operations (Manager 2) (Asian, male, Korean) acknowledged questioning Complainant in the hallway while shew as leaving the main office. Specifically, he stated that he has the right to question any employee in the building without permission and off the clock. At that time Complainant was talking to an employee in front of the FSM machine. Manager 2 explained that as a Tour 2 employee, Complainant did not have permission to be in the building. In addition, Manager 2 stated that he questioned Complainant what she was doing in the union office because her tour ended several hours earlier. He explained that any employee who is “off the clock” must leave the building due to safety concerns. He also stated that Complainant claimed she was a union steward and had the right to be in the office and stayed late, which was not true. Manager 2 placed Complainant’s Tour Manager on notice that Complainant must have permission to be in the building. With respect to Complainant’s allegation that on January 16, 2017, she was spoken to in a loud manner, Manager 2 stated that he was not sure what she was referring to, but he had a right as Tour 3 Manager to question employees. He asserted that he did not harass Complainant and did not yell at her. The image which emerges from considering the totality of the record is that there were conflicts and tensions with management and several coworkers that left Complainant feeling aggrieved. 2019003992 5 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment unless that treatment is the result of discriminatory factors. See Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, color, national origin, sex, disability, and/or prior EEO activity. Her claim of harassment/hostile work environment 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. 01982923 (Sept. 21, 2000). Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation during the relevant period. Substantial record evidence supports the Agency’s finding that Agency management accommodated Complainant’s request for light duty to work 4 hours daily. Complainant wanted to work various duties she could work sitting down in an attempt to work 8 hours. The Manager explained that Complainant was not guaranteed a set number of hours and the work provided was based on the restrictions identified by her doctor which limited her to 4 hours daily activity in several job-related categories. There is no evidence of record to dispute this assertion. Complainant is entitled to a reasonable accommodation, but not necessarily the accommodation of her choice. Here, the evidence supports the Agency’s conclusion that Complainant was provided an effective accommodation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.4 4 On appeal, Complainant does not challenge the December 22, 2016 partial dismissal issued by the agency regarding two other claims (that she was discriminated against on the bases of race, color, national origin, sex, disability and in reprisal for prior EEO activity when she was subjected to a hostile work environment, including since on or about October 2016, her husband/co-worker has been sent home prior to his end tour on at least four occasions; and since November 13, 2016, her husband/co-worker has not been permitted to work). Therefore, we have not addressed these issues in our decision. 2019003992 6 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). 2019003992 7 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 7, 2021 Date