[Redacted], Barbar R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2021004236 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbar R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004236 Hearing No. 540-2020-00222X Agency No. 1E-853-0056-19 DECISION 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 12, 2021 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Handler at the Agency’s Phoenix Processing and Distribution Center (Phoenix P&DC) in Phoenix, Arizona. On November 5, 2019, Complainant filed a formal EEO complaint claiming that the Agency subjected her to a hostile work environment since June 26, 2019, and ongoing, based on 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. 2021004236 2 disability (knee instability and weak immune system) and in reprisal for prior protected EEO activity2 when: 1. on July 30, 2019, Complainant was subjected to an investigative interview and subsequently on August 4, 2019, was issued a Notice of Suspension Seven (7) Day No-time-Off for Unacceptable Conduct/Failure to Follow Instructions; 2. on September 17, 2019, Complainant was subjected to an investigative interview and subsequently on September 28, 2019, was issued a Notice of Suspension Seven (7) Day No-Time-Off for Unsatisfactory Attendance/Failure to be Regular in Attendance; 3. on date(s) to be specified, Complainant’s supervisor stated she would be successful in firing Complainant and also stated, “I don’t give a rat’s ass about you [Complainant];” 4. on a date to be specified, Complainant’s request for light duty was denied; 5. on date(s) to be specified, Complainant was sent home without the option to work full duty; and 6. on date(s) to be specified, including September 2, 2019, Complainant was denied overtime. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew the request. On May 12, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 2 Complainant testified that she had filed a prior EEO complaint. Although Complainant acknowledged that the management officials identified in the instant complaint were not involved in her prior complaint, Complainant indicated that she informed her Supervisor (S1) of her prior EEO activity in January (Complainant omitted a year). 2021004236 3 ANALYSIS AND FINDINGS Disparate Treatment: Claims 1 - 2 and Claims 4 - 6 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that, on an undisclosed date, she was diagnosed with knee instability and a weak immune system. Complainant explained that her knee condition required surgery and that she informed her Supervisor (S1) of her injury. Although Complainant’s position required that she lift up to seventy pounds, Complainant explained that her knee condition prevented her from lifting no more twenty pounds, repetitively. Complainant indicated that the Agency granted her work restriction of not lifting more than twenty pounds. Therefore, we find that the record supports that Complainant was a qualified individual with a disability. Our review of the record reflects that the Agency articulated legitimate, nondiscriminatory reasons for its actions. July 2019 Investigative Interview and August 2019 Notice of Suspension (claim 1) S1 was the responsible management official for conducting the interview and suspending Complainant. S1 explained that Complainant was issued a 7-day suspension no-time-off for unacceptable conduct and for failure to follow instructions on August 4, 2019. 2021004236 4 Specifically, S1 indicated that on July 26, 2019, she asked Complainant to follow her to the Tour Supervisors’ office, but Complainant refused despite S1’s repeated request and direct order. S1 noted that the employee labor manual specifies that employees must obey instructions of their supervisors. S1 further indicated that Complainant’s Manager (M1) requested that Complainant report to the Tour Supervisors’ office, explained that S1 needed to discuss a matter that could not be addressed on the workroom floor, but Complainant again refused to follow instructions. As a result, S1 explained that M1 proceeded to call the police to have Complainant escorted out of the building, and Complainant responded to S1 by stating, in pertinent part, “You don’t know who you are dealing with,” “You messed with the wrong person;” and “You started it and I am going to finish it.” Therefore, S1 conducted an investigative interview into the matter and determined that a seven-day suspension was appropriate due to the nature and serious of the infraction. A copy of the August 4, 2019 notice of suspension confirms that the suspension notice was issued due to unacceptable conduct/failure to follow instructions. September 2019 Investigative Interview and September 2019 7-Day Suspension (claim 2) S1 was the responsible management official for conducting the investigative interview and suspending Complainant. S1 stated that Complainant was suspended for unsatisfactory attendance and failure to be regular in attendance. Specifically, S1 explained that Complainant changed her leave slips from Family Medical Leave Act (FMLA) leave to unscheduled leave, which resulted in her being subjected to an investigative interview. S1 further explained that Complainant had previously received a discussion on December 31, 2018 and a Letter of Warning on May 18, 2019 regarding this issue. S1 therefore determined that a seven-day suspension was the next progressive disciplinary step. A copy of the September 28, 2019, notice of suspension confirms that the notice was issued for unsatisfactory attendance/failure to be in regular attendance. The notice explains that since August 3, 2019, Complainant had approximately 87.93 hours of unscheduled, non-FMLA leave on at least four occasions. Denial of Light Duty Request (claim 4) S1 explained that Complainant requested light duty from July 19, 2019 through August 19, 2019. However, S1 explained that Complainant’s request was denied until Complainant submitted documentation reflecting her work restrictions. S1 further clarified that contrary to Complainant’s testimony, Complainant was provided a temporary modified duty assignment on July 30, 2019 through August 24, 2019, while management waited to receive notification of Complainant’s work restrictions. Nevertheless, S1 indicated that Complainant failed to provide the necessary documentation to support her need for light duty. 2021004236 5 Sending Complainant Home (claim 5) S1 explained that Complainant had been notified on July 17, 2019 that she needed to submit sufficient documentation to substantiate her need for Light Duty by July 22, 2019. S1 further explained that Complainant was also informed that she would be sent home if she did not provide the necessary information. However, S1 noted that Complainant reported to work on July 26, 2019 without the necessary documentation. As a result, S1 sent Complainant home. S1 indicated that Complainant asserted that she was still on light duty, but without the necessary documentation, S1 explained that she was unaware of what Complainant’s work restrictions were. A copy of a July 17, 2019 letter issued to Complainant explains that Complainant’s previous request for light duty had expired on July 10, 2019, and Complainant needed to submit relevant medical documentation every thirty days to support her continued need for light duty. The letter requested that Complainant submit the necessary documentation by July 22, 2019. Denial of Overtime (claim 6) S1 explained that Complainant was not scheduled for overtime. S1 further explained that Complainant was on light duty and Complainant’s mail volume workload did not warrant bringing in Complainant to work overtime/report to work on a sixth day. Although S1 acknowledged that Complainant’s name was on the weekly overtime list, S1 explained that overtime is based on Agency needs. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability or prior protected EEO activity. Harassment/Hostile Work Environment: Claim 3 To prove her claim of hostile environment harassment, 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 disability or reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). 2021004236 6 As an initial matter, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 2, and 4 - 6 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). S1’s Comments Toward Complainant (Claim 3) Complainant testified that in January 2019, S1 told her “if it were up to me, I would’ve fired you, I don’t mess up on my paperwork.” Complainant further testified that in September 2019, S1 told her “I don’t give a rat’s ass about you, [Complainant].” S1 provided context for both of her comments at issue. S1 explained that she had a discussion with Complainant regarding her attendance and Complainant did not understand why S1 kept monitoring her attendance when Complainant’s attendance was not monitored at her prior post office. S1 acknowledged that Complainant had been absent a total of six months at the prior post office and S1 did not understand why management at prior post office only addressed Complainant’s absences with a discussion instead of with other disciplinary action. S1 explained that attendance is monitored at the Phoenix P&DC and that if Complainant had been absent six months without leave at the Phoenix P&DC, her employment would have likely been terminated. S1 noted that the Phoenix P&DC attendance system notifies her via message for every three unscheduled absences an employee has. S1 further noted that she informed Complainant that she had at least five absences since January 5, 2019, which was the reason she wanted to address this issue with Complainant. Consequently, S1’s comment was regarding the different business practices for addressing prolonged employee absences between Complainant’s prior post office and her current post office. Regarding the second statement at issue, S1 explained that Complainant had accused her, S1, of verifying that Complainant had a handicapped sticker/license plate and that S1 was asking staff questions regarding why Complainant had FMLA leave. S1 stated that she consistently denied these accusations, but Complainant did not believe her which resulted in S1 saying, Listen to me, I don’t give a rat’s ass whether or not have a handicapped license plate or not. I don’t even know what kind of car you drive or why you have FMLA or why you are light duty. What I do care about is what your restrictions are. Therefore, this context indicates that S1 made this statement to refute Complainant’s accusations against her. We find that considering this allegation, even if true, Complainant has not presented sufficient credible evidence demonstrating that considerations of her disability or retaliatory animus motivated management’s actions toward Complainant. Aside from Complainant’s assertions, there is no other evidence to substantiate her claims. 2021004236 7 Consequently, we find that the incidents Complainant alleges were not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Additionally, aside from Complainant’s bare assertions there is simply no evidence that the disputed actions were motivated in any way by Complainant’s disability or prior protected EEO activity, and therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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. 2021004236 8 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. 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. 2021004236 9 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 11, 2022 Date