[Redacted], Aurore C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2019005914 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurore C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019005914 Hearing No. 420-2018-0064X Agency No. 4G-390-0071-17 DECISION On August 7, 2019, 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 July 11, 2019, final order 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 order. ISSUES PRESENTED The issue presented in this case is whether the Equal Employment Opportunity Commission’s Administrative Judge (AJ) erred in finding that Complainant was not subjected to discrimination and/or harassment. 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. 2019005914 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Associate at the Agency’s Shaw Post Office in Shaw, Mississippi. In the instant case, Complainant, a white employee, alleged that she was routinely mistreated by the new black Postmaster (S1). Complainant maintained that S1 scheduled her fewer hours than the black clerks. S1 acknowledged making scheduling mistakes, but Complainant maintained that she repeatedly continued to make them even after she had been instructed on proper procedure and policy. S1 also scheduled Complainant less than her two-hour guarantee -- another "mistake" she happened to repeat twice, but again only with Complainant -- never with the black clerks. Complainant also alleged that S1 forced her to remove her personal effects that included Christian symbolism on her desk, a "policy" she never enforced with the black clerks. Further, S1 criticized and harassed Complainant in public and in private. On July 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (Caucasian) when: 1. On April 3, 2017, she was subjected to a discussion; 2. On April 7, 2017, and April 28, 2017, and some other dates up until June 28, 2017, she worked less hours than her coworkers; 3. On April 10, 2017 and June 5, 2017, and some other dates up until June 28, 2017, she was assigned to perform other craft duties; 4. On April 14, 2017, and some other dates up until June 28, 2017, she has worked less than her two-hour guarantee; 5. On April 28, 2017, and some other dates up until June 28, 2017, she was spoken to in a loud tone, bullied and/or harassed; 6. On May 10, 2017, S1 pointed a pen in her face, and stated she would call the police the next time Complainant raised her voice in the office; 7. On May 10, 2017, she was accused of falsifying a document; 8. On May 18, 2017, S1 told her that she could no longer have personal belongings on the work room floor; and 9. She has been provided with duties she believed exceeded her medical restrictions. 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. On March 8, 2019, the Agency filed a Motion for Summary Judgment. On April 15, 2019, Complainant filed a Response in Opposition to the Agency's Motion. The AJ assigned to the case granted the Agency’s motion and issued a decision without a hearing on June 19, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged. 2019005914 3 CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the AJ erred in finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions. She reasserts that she was subjected to discrimination and bullying by S1 based on her race. Complainant contends that, after 40 years of service with the Agency and multiple black supervisors, this is the first time that she has had an issue with a supervisor. Complainant maintains that S1 consistently showed preference for black employees. She contends that S1 regularly berated, criticized, and verbally abused her white employees, including Complainant -- often bringing her to tears. In response, the Agency contends, among other things, that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to demonstrate that the reasons were pretext for discrimination. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. 2019005914 4 At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant failed to do so. We find that, other than disagreeing with the decision, she did not demonstrate that any material facts were at issue. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of race discrimination, the Agency articulated legitimate nondiscriminatory reasons for its actions. Specifically, S1 maintained that race was not a factor with regard to any of the claims. S1 explained that, with regard to claim no. 1, a discussion occurred on April 3, 2017, because she assigned Complainant a cleaning job and Complainant failed to do it in a timely manner. She told Complainant that, if she did not clean, she would not get cleaning hours. Complainant argued that the cleaning assignment was new to her and that it would take some time for her to develop a routine. 2019005914 5 Regarding claim no. 2, Complainant alleged that a black coworker received more hours than she did. S1 explained that the coworker may have received more hours on April 7 and 28, and June 2, 2017, but the hours should have been equitable for the whole week. Further, the coworker was willing to go to other offices while Complainant was not. With respect to claim no. 3, Complainant stated that she did not believe that race was a factor in the assignment of other craft duties (cleaning). Complainant argued, however, that the black coworker was not assigned both clerk and cleaning time. S1 stated that clerk and cleaning duties were not assigned at the same time, as was indicated. Regarding claim no. 4, Complainant alleged that S1 was responsible for her working less than the two-hour work guarantee on April 14 and 28, 2017. S1 acknowledged that she erred in scheduling Complainant’s hours and, as a result, Complainant was later compensated for those dates. S1 explained that she was getting a better understanding of scheduling. In claim no. 5, Complainant alleged that, on April 28, 2017, and other dates, she was spoken to in a loud tone, bullied and/or harassed. Complainant later acknowledged that she did not see S1 on April 28, 2017. She also maintained that S1 questioned her in a disrespectful manner about why she was in the office early and asked questions about “WebBATS” in an angry and disrespectful manner. S1 acknowledged that she questioned Complainant about work related issues but indicated that she questioned her in a professional manner. Regarding claim no. 6, Complainant alleged that, on May 10, 2017, she and S1 got into a loud discussion regarding falsifying documents. Both women were alleged to have pointed pens at each other. S1 stated that she told Complainant that if she ever raised her voice in the office again she would call authorities if Complainant continued being aggressive. S1 maintained that it was Complainant that was aggressive. With respect to claim no. 7, Complainant alleged that she was accused of falsifying a document on May 10, 2017, after a box that was shown as closed in WebBATS was actually open. S1 stated that she accused Complainant of falsifying a document because Complainant charged a customer for a P.O. Box that was closed. S1 explained that Complainant was not disciplined regarding this matter. In claim no. 8, Complainant alleged that, on May 19, 2017, she was told that she could no longer have personal belongings on the workroom floor. This included her cell phone and religious objects that were on her desk. S1 explained that Complainant was the only employee that violated the policy that you were not supposed to have a cell phone and/or personal items on the workroom floor. S1 maintained that there was a locker provided for personal items. Finally, with regard to claim no. 9, Complainant alleged that she was given duties which she believed exceeded her medical restrictions. Complainant later recanted this allegation and maintained that this never occurred. S1 stated that it was Complainant and her husband that harassed her to the point that she had to call the local authorities and the Postal Inspector. 2019005914 6 S1 indicated that she immediately notified her supervisor when Complainant’s husband came to the post office and wanted to know "what the hell was going on." To show pretext, Complainant argued that her black coworker and black employees in general were treated more favorably than she was. We find that Complainant did not show that the Agency’s reasons were pretext for discrimination or that discriminatory animus was involved. We find that Complainant did not show that the incidents were related to her race, and while Complainant may have believed that black coworkers were treated more favorably, other than her contentions, she provided no evidence that this was the case. It is clear from the record that Complainant and S1 had communication problems, however the incidents described in this case were supervisor/subordinate interactions with no evidence that race discrimination was involved. With respect to Complainant’s contentions on appeal, we find that, other than Complainant’s conclusory statements, she has not provided any evidence that she was subjected to discrimination based on her race. Complainant argues that her black coworkers were treated more favorably and she offers testimony from a witness that recorded an argument between Complainant and S1. However, while this argument was reportedly intense, it appeared to be about a work situation. There was also no mention of race in this disagreement. Moreover, regarding Complainant's allegation that the black coworker was scheduled more favorably, S1 acknowledged that as a new supervisor she was learning from her scheduling mistakes. Again, other than her conclusory statements, Complainant has not shown that discriminatory animus was involved in the Agency’s actions. Harassment With regard to Complainant’s claim of harassment we find 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 Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As stated above, the interactions between Complainant and S1 involved work place issues that were not severe or pervasive enough to establish a hostile work environment. CONCLUSION Accordingly, we AFFIRM the Agency’s final order which found that Complainant did not demonstrate that she was subjected to the discrimination and/or harassment. 2019005914 7 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). 2019005914 8 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation