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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2020005232 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Audrea L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005232 Agency No. 4E-980-0011-18 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 10, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND On or around September 7, 2017, Complainant was employed as a City Carrier Assistant (CCA) at the Agency’s Auburn-Twin Lakes Station in Federal Way, Washington. She was placed on a 90-day trial work period, which included 30-day and 60-day evaluations. Supervisor, Customer Services, (Supervisor) did not believe Complainant was meeting expectations. Specifically, Supervisor noted that Complainant returned late from her deliveries and did not ask for help. Supervisor communicated these performance issues to Complainant. Supervisor attested that if an employee comes back late or did not call and inform him that they needed help, he would ask questions. He would ask why they were late, why they took so long, and what happened. 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 2020005232 Supervisor explained that he did this to find out the “root cause” and help the employee correct the problem. Complainant, however, believed that Supervisor was constantly attacking her. According to Complainant, Supervisor called her all the time when she was on the street and was in her face at the office. Complainant viewed Supervisor’s communication as harassment and reported it to the union. An internal inquiry did not find Complainant’s allegations were substantiated. Report of Investigation [ROI] at 152, 158; Counselor’s Report at 13; ROI at 89 ,90, 288, 289. Manager Customer Services, (Manager), Complainant’s second-line supervisor, recommended that Complainant be terminated during her probationary period due to her unsatisfactory performance. Manager stated that 80 percent of the time, Complainant would not meet her performance requirements unless she was provided auxiliary help. He contended that Complainant was always the last carrier back, did not ask about her own performance daily, and did not improve her performance. Complainant’s evaluation report reflected that at her 30-day evaluation, she received "Unsatisfactory" ratings for Work Quantity and Work Quality. At the 60-day mark, Complainant’s ratings remained the same, with the addition of also receiving an "Unsatisfactory" rating for Work Methods. Additionally, Complainant had excessive unscheduled absences. Manager stated that he discussed these issues with Complainant and marked on her PS Form 1750 Employee Evaluation and/or Probationary Report what she needed to do. ROI at 217, 223, 272. The record includes the PS Form 1750, which reflects Complainant’s appointment date as September 9, 2017 and the end of her probationary period as November 28, 2017. Complainant’s October 9, 2017 assessment shows that she was rated as “Unsatisfactory” in Work Quantity and Work Quality. Her November 8, 2017 assessment shows that she was rated as “Unsatisfactory” in Work Quantity, Work Quality, and Work Methods. ROI at 272-273. On or about November 22, 2017, believing that Complainant could improve if given another chance, the Postmaster reassigned her to the Auburn Station location. ROI at 369, 226. On January 4, 2018, thinking that Complainant was still within her 90-day trial work period, the Postmaster terminated her due to unimproved performance and excessive unscheduled absences. The Postmaster did so in compliance with the Agency’s Employee and Labor Relations Manual, “Separation-disqualification must be effected during the probationary period.” ROI at 467, 273. Complainant had, however, completed her trial work period at the time, and therefore was entitled to access the grievance process regarding her removal. The Agency had incorrectly recorded Complainant’s start date, which was uncovered by the Union Steward on or about January 5, 2018. The Union Steward immediately notified the Postmaster and Complainant was reinstated on January 8, 2019. She was, however, not compensated for the four days the termination was in effect. ROI at 190-192, 197. While working at the Auburn station location, Complainant’s vehicle was towed because it had been parked in a spot designated for a senior employee. Complainant was later reimbursed $377.30, the total towing charge. ROI at 286. 3 2020005232 On January 26, 2018, shortly after she was reinstated, Complainant voluntarily resigned from her position. According to Complainant, she made the decision to resign because she “prayed and got my answer." ROI at 267, 296, 233. On March 6, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (White/African-American), sex (female), color (Pale), and reprisal for prior protected EEO activity (reporting harassment) under Title VII of the Civil Rights Act of 1964 when: 1. Beginning on September 7, 2017, and ongoing, Complainant’s supervisor yelled at Complainant and belittled her; 2. From December 30, 2017, to January 19, 2018, Complainant’s employment was terminated, and Complainant was not compensated; 3. On January 24, 2018, the Postmaster had Complainant’s vehicle towed; and 4. On January 28, 2018, Complainant resigned due to the hostile work environment. The Agency investigated Complainant’s allegations. At the conclusion of the 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, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues that she established a prima facie case of hostile work environment and reprisal, asserting that she has shown a nexus between the adverse actions and the temporal proximity of her protected activity. Complainant also asserts that Supervisor’s question, about why she had reported him to the union steward, if not directly retaliatory, was at least intended to deter Complainant from making similar reports. Complainant argues that she is entitled to compensation for the days she did not work due to the “procedurally defective” termination. Complainant also asserts that the alleged incidents resulted in her resignation because they were “pervasive and interfered in the performance of her duties.” Complainant asks that the Commission find in her favor. On appeal, the Agency argues that Complainant failed to establish a prima facie case of discrimination because she was not treated differently based on her protected classes and she failed to show that similarly situated employees were treated better or differently. The Agency argues that none of the actions described, together or separately, constitute “harassment” because they are not sufficiently severe or pervasive. 4 2020005232 The Agency also argues that Complainant failed to establish a prima facie case of retaliation, asserting that Supervisor and other officials named in Complainant’s harassment allegations were not aware of her complaints. Further, even when Supervisor became aware that Complainant had complained about his yelling during an October 23, 2017 meeting with the Union Steward, he was not involved in any subsequent adverse actions against her. The Agency states that Complainant also failed to demonstrate how other officials became aware of her complaint and she failed to show pretext. The Agency argues that because Complainant herself admitted that her termination was procedurally defective, her termination was not discriminatory. Therefore, the Agency argues, Complainant is not entitled to compensation. The Agency states that Complainant did not demonstrate that management took any adverse action that was calculated to encourage her resignation. The Agency asks that the Commission find in its favor. STANDARD OF REVIEW 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, at Chapter 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”). ANALYSIS AND FINDINGS Disparate Treatment - Claim 2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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. 5 2020005232 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Postmaster attested that Complainant was terminated due to her excessive absences and poor performance. Specifically, Postmaster noted that she had never had an employee with four unscheduled absences during their probationary period, along with unsatisfactory work. When Postmaster issued the termination, she did not realize that Complainant was no longer in her 90- day trial period, as her start date was incorrectly recorded. When the error was brought to the Agency’s attention, Complainant was reinstated. Since the Agency has articulated a legitimate, non-discriminatory reason for its action, the burden shifts to Complainant to show pretext. Complainant presented no argument or evidence to refute the Agency’s articulated reasons for its actions. Complainant herself admitted that her termination was “procedurally defective,” acknowledging that it was in error. Therefore, Complainant has failed to present any persuasive evidence of pretext. Pretext is not concerned with bad judgment, impeccability, dislike, or a mistake. See Jeremy H v. Soc. Sec. Admin, EEOC Appeal No. 0120181965 (Sept. 20, 2019). Complainant did not demonstrate that her incorrectly recorded start date was not simply an administrative error but motivated by discriminatory animus. Neither did she cite to any Agency policy requiring employee compensation for hours not worked or scheduled to work. Harassment - Claims 1, 3, and 4 To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In Claim 1, Complainant alleged that Supervisor yelled and belittled her; constantly called her when she was out making deliveries; and “got in her face” at the office. Supervisor, while acknowledging that he has a loud voice, denies yelling at Complainant. 6 2020005232 Complainant may have found Supervisor’s loud voice and allegedly “belitt[ling]” behavior unwelcome, she has failed to demonstrate that it was based on her protected bases. Rather, it appears that the communication at issue was related to Complainant’s failure to meet work expectations. Supervisor asserted that he questioned Complainant in order to determine why she was late, so he could effectively coach her to successful performance. ROI at 158. We have posited that "employees may experience unprofessional, inappropriate, and disrespectful treatment". See, e.g., Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018); see also Vu v. Soc. Sec. Admin, EEOC Appeal No. 01A52675 (June 17, 2005) (affirming that the supervisor demeaning the complainant in front of subordinates, and a handful of other loud, rude or demeaning comments, was insufficient). In Claim 3, Complainant alleged that her vehicle was towed because she had reported harassment. However, according to the Postmaster and a second Supervisor, Customer Services, Complainant’s vehicle had been towed because Complainant had parked in the customer parking lot, and she was not one of the handful of senior employees that were permitted to do so. Based on Complainant’s own affirmation and copy of a Money Order included in the record, Complainant was reimbursed for the towing charge. Complainant has not shown any nexus between her protected classes and the Agency’s decision to remove her vehicle. ROI at 197-199, 177-178, 180. In Claim 4, Complainant alleged that she resigned due to the hostile work environment. However, in a January 26, 2018 email, Complainant informed the Manager, Post Office Operations, that she made the decision to resign “Not because of anything you said or anything you did. But cause I had a moment on the street where I prayed and got my answer." Complainant has not shown any connection between her protected bases and the alleged harassment. Neither has she described any severe or pervasive conduct that interfered with her work performance or rises to the level of actionable harassment. Therefore, Complainant’s harassment claim fails and she is not entitled to relief. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 7 2020005232 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. 8 2020005232 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 February 7, 2022 Date