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

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020000348 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbara C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000348 Agency No. 4K-280-0145-18 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from n August 13, 2019 Final Agency Decision (“FAD”) concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Rural Carrier Associate (“RCA”) at the Steele Creek Post Office in Charlotte, North Carolina. On October 30, 2018,2 Complainant filed a formal EEO complaint alleging that she was subjected to a hostile work environment/harassment by the Agency on the bases of sex (sexual orientation) and reprisal (prior protected 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. 2020000348 2 1. On May 8, June 2, October 9, and December 20, 2017, as well as May 31 and June 17, 2018, she was required to provide documentation for her absences; 2. On August 10 and 24, September 7 and 21, and October 5 and 19, 2018, she was not paid for work hours; 3. On July 17 and August 6, 2018, she was subjected to investigative interviews; 4. On or about July 14, 2018, she was accused of stealing time; 5. On unspecified dates, her Union Steward spoke to or about Complainant in an unpleasant manner; 6. On July 19, 2018, she was placed on Emergency Placement in an off duty without pay status; 7. On or about November 7, 2018, she received a Notice of Proposed Removal (“NOR”) for improper recording of her work hours; 8. From July 19, 2018 until November 26, 2018. she has been placed on emergency placement in off duty without pay status; 9. On July 24, 2018, Management threatened to call the police for her sending out priority letters in the front lobby; 10. On October 18, 2018, she became aware that management halted her conversion to full-time status; 11. On an unspecified date, the Union failed to file a non-compliance grievance on her behalf; 12. On or about December 5, 2018, she was transferred to the Ballantyne Station; 13. On December 10, 11, 17, 18, and 20, 2018, she was called out but was not paid for the leave that she requested; 14. Beginning in December 2018 and continuing, she was charged 40 hours of LWOP for her former route at the Steele Creek office each week despite being assigned to work at the Ballantyne Station; and, 2 The Agency accepted Complainant’s requests to amend her complaint to include the allegations in Claims 9-12 on January 24, 2019, and the allegations in Claims 5-8 on November 20, 2018. 2020000348 3 15. On unspecified dates, her work hours were reduced while she was assigned to the Ballantyne Station.3 Prior to investigating Complainant’s complaint, the Agency dismissed Claims 5, 6, and 11 on procedural grounds. At the conclusion of its investigation of the remaining claims, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request either a FAD or a hearing before an EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record includes but is not limited to the following relevant facts: At Steele Creek Station, Complainant’s first level supervisor (“S1,” female, perceived as straight) was a Supervisor, Customer Services, EAS-21, and her second level supervisor was a Manager, Customer Services, EAS-21, (“M1” female, perceived as straight). Another Supervisor, Customer Services, EAS-17 (“S3,” male) assisted with submitting Complainant’s payroll documentation. As an RCA, Complainant was assigned a vacant route to “hold down” when it was not assigned to a bid employee, and, in order to get paid, submitted Rural Carrier Trip Reports (PS Form 4240). RCAs are trained and instructed to record the hours worked on the PS Form 4240. Complainant was assigned to Route 57 and recorded her evaluated hours on the PS Form 4240s she submitted. Management instructed Complainant multiple times to record hours worked. On July 14, 2018, M1 became aware that Complainant had disregarded Management’s instructions and had been recording the same time in and out since January 2018. Complainant states that she was told to record her evaluated time by S1 and S3 following an October 2017 grievance regarding pay. Complainant was subjected to an investigative interview on the matter on August 6 or 7, 2018. On July 16, 2018, Complainant returned to the station after delivering her route, and S1 instructed her to go back out and assist a carrier with their route. Complainant admits that she “refused” and “elevated [her] voice a bit” but not in a threatening manner. Her response was because her postal vehicle was overheated, she had a heavy workload the day before, and S1 could have saved her time by instructing her to help the carrier before she returned to the station, as the carrier was 10 to 15 minutes away. Complainant completed some tasks, had a friendly conversation with a coworker, then called the carrier and notified a different supervisor that she would be over to help. Complainant then delivered all of the carrier’s parcels. On July 17, 2018, S1 called Complainant to her office for an investigative interview. According to Complainant, it was already “obvious someone was trying to make [her] day longer and harder.” 3 Complainant withdrew the allegation in Claim 15 in her signed investigative affidavit. 2020000348 4 Despite confirming with S1 that she was working, no routes were available when she arrived, and in an unusual move, her postal vehicle had been assigned to another carrier. Feeling “targeted and sick to her stomach,” Complainant reminded S1 that she helped the carrier the day before, as instructed. S1 explained that the interview was related to conduct, as Complainant only helped by taking parcels, no mail. To Complainant, this was “a slap in the face” because she still helped, and other RCAs divided deliveries by mail and packages. Complainant responded, “lets get this over with,” but then asked to go home early because she felt sick. S1 said Complainant could leave, but reminded her to bring a doctor’s note. Complainant felt further singled out because she understood that other RCAs did not have to provide documentation for absences less than three days. When S1 told Complainant not to bring a note from California (where Complainant’s online provider was based), Complainant states that she told S1 that she “couldn’t regulate which doctor she used” then left. According to S1, Complainant “began screaming and using profanity” causing M1 and the Union Steward to intervene. On July 19, 2018, Complainant was subjected to another investigative interview, which resulted in her Emergency Placement (“EP”). In an appeal to the Merit Systems Protection Board (“MSPB”), Complainant recounts that M1 requested medical documentation to support Complainant’s early departure on July 17, 2018. Complainant recounts that she provided a signed doctor’s note, but M1 “screamed” that it was not acceptable because the note was not from a doctor that M1 told Complainant to go to. Complainant asked M1 to show her the regulation that stated her doctor was not acceptable. According to Complainant, “M1 became very upset and began yelling.” Complainant states, “I began to yell back as she had no right to talk to me this way.” Complainant picked up a grievance form on her way out, and the Union Shop Steward informed her that “Management said” she was no longer permitted in the building. On August 3, 2018, Complainant received formal notice of her EP. On July 24, 2018, Complainant returned to the building to obtain a signature for her grievance form. Complainant texted S1 ahead of time to make sure it was OK, and S1 instructed her to drop it off “any time that afternoon.” Complainant arrived and one of the supervisors (“S4,” female) took Complainant’s grievance form and went to get S1. S4 returned, and told Complainant, that she spoke with M1, and, “I’m so sorry to do this to you if you don’t leave I have to call the police.” Complainant continued to wait in the front lobby, explaining that she texted S1, and waiting for her grievance form. Eventually she left, and the police were not called. On October 9, 2018, following a step three grievance, the parties entered into a settlement agreement to resolve the matter of pay during Complainant’s EP. Specifically, Complainant’s status as a Veteran Preference employee entitled her to be placed in pay status after the first 14 days of her EP until she received a final decision on disciplinary action, and the Agency agreed to “process a pay adjustment for administrative leave for any appropriate time after the fourteen (14) day mark.” In a brief regarding Complainant’s MSPB Appeal, the Agency states that on October 12, 2018, pay adjustments were submitted and Complainant was placed in administrative leave status beginning July 21, 2018, and restoration of benefits. 2020000348 5 In October 2018, Complainant became aware that she, along with multiple other RCAs at Steele Creek Station, were to be converted to Part-time Flexible (“PTF”) which meant a raise, benefits and an assignment with a minimum of three routes. However, because Complainant was on EP at the time, the Agency placed her PTF conversion in abeyance. Once Complainant was off EP, she would be converted to PTF and the Ballantyne Station, also located in Charlottesville. On November 5, 2018, the Agency issued Complainant a Notice of Proposed Removal (“NOR”) for improperly recording her time for hours worked on PS Form 4240. On November 26, 2018, the NOR was rescinded. The Labor Relations Manager (“LRM”) explained that although removal was warranted in Complainant’s case, as Complainant was already scheduled to report to Ballantyne upon her conversion, she would have a “fresh start” at a new postal station. On or about December 5, 2018, Complainant was transferred to Ballantyne Station, where she reported to a Supervisor, Customer Services, EAS-17 (“S2,” female). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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, 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”). Procedural Dismissals - Claims 5, 6, and 11 Under 29 CF.R. § 1614.107(a)(1) an agency shall dismiss a complaint that fails to state a claim. Generally, complaints involving other administrative proceedings, including those involving negotiated grievance procedures and related processes, do not state a claim within the meaning of EEOC regulations. See Hogan v. Dep’t of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). Additionally, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. Wills v. Dep’t of Defense, EEOC Request No. 05970596 (Jul. 30, 1998). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding. See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint).4 4 For these reasons this Decision does not discuss the portions of Complainant’s appellate brief related to grievance issues. 2020000348 6 Relevant to Claims 5 and 11, we have previously held that claims involving union matters, including allegations about employees acting in their capacity as union officials, fail to state a claim, as they do not directly relate to a term, condition, or privilege of the complainant’s employment, and are an attempt to lodge a collateral attack on union enforcement procedures. Complainant v. United States Postal Serv., EEOC Appeal No. 0120142298 (Dec. 5, 2014), see also, e.g. Complainant v. Dep't of the Treas., EEOC Appeal No. 0120142257 (Nov. 7, 2014) (allegation that the agency failed to respond to the complainant’s formal grievance requesting the removal of several union officials, and enforcement of accountability within the union, failed to state a claim). Claim 5, which involves a union steward’s conduct toward Complainant, and Claim 11 which challenges the union’s decision-making on whether to file a compliance action on Complainant’s behalf fail to state a claim. The proper forum to have raised Claims 5 and 11 would be through the Union’s internal procedures or before the Federal Labor Relations Authority (“FLRA”). Id. Under 29 C.F.R. § 1614.107(a)(4) an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the Merit Systems Protection Board (“MSPB”) and 29 C.F.R. § 1614.302 indicates that the Complainant has elected to pursue the non-EEO process. As defined by 29 C.F.R. § 1614.302(a)(1), a “mixed case” complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. In accordance with 29 C.F.R. § 1614.302(b), an aggrieved person may elect to initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. Whichever is filed first shall be considered an election to proceed in that forum. See Dillon v. United States Postal Serv., EEOC Appeal No. 01981358 (Dec. 23, 1998) citation omitted. Claim 6 involves an Emergency Placement (“EP”) on Non-Pay Status, which is an employment action that falls within MSPB jurisdiction. On appeal, Complainant provided the Commission with a copy of an Order issued by an MSPB AJ, establishing that Complainant appealed her July 19, 2018 EP to the MSPB on September 29, 2018 and the matter was accepted and docketed under MSPB Docket No. DC0752190010I1. The record reflects that Complainant did not file the instant complaint, regarding the same action, until October 30, 2018. Thus, the MSPB has jurisdiction over the EP alleged in Claim 6. Where, as here, a complainant initially pursues an MSPB appeal instead of filing an EEO complaint, they must include their discrimination claim in their MSPB appeal to preserve the option of raising the matter with the EEOC in the future, should the MSPB decline jurisdiction. See Adam N. v. United States Postal Serv., EEOC Appeal No. 2019001249 (Apr. 18, 2019)(Commission rejected the complainant’s reasoning that he should be allowed to pursue his EEO complaint since discrimination was not raised in his MSPB appeal, because it determined that complainant could have raised his discrimination claim with the MSPB and failed to do so) citing Kidd v. Dep't of the Navy, EEOC Appeal No. 0120121751 (Jun. 28, 2012) (affirming the dismissal of complaint where Complainant failed to allege discrimination before the MSPB on the same matter). 2020000348 7 However, Complainant’s MSPB Order also reveals that Complainant voluntarily withdrew her MSPB appeal before it was heard, and that it was dismissed with prejudice on January 31, 2019. Regardless of how her appeal was resolved, Complainant still appealed to the MSPB before filing her EEO Complaint, for purposes of establishing jurisdiction. The dismissal order does not indicate whether Complainant raised discrimination allegations in her MSPB appeal. Complainant has not shown that she included the discrimination allegation in Claim 6 when she raised the matter in her MSPB appeal, and as she appealed to the MSPB prior to filing the instant complaint, the Commission lacks jurisdiction to address the matter in Claim 6. Claims 5, 6, and 11 were properly dismissed 29 CF.R. § 1614.107(a) and will be excluded from the remainder of our analysis. Settlement Agreement - Claims 2 and 8 Although Claims 2 and 8 were accepted by the Agency for investigation in the instant complaint, the record reveals that these allegations were resolved through another administrative proceeding. Specifically, Complainant and the Agency entered into a Settlement Agreement (“Agreement”) through the grievance process on October 9, 2018. Under the Agreement, the Agency agreed to “process a pay adjustment for administrative leave for any appropriate time after the fourteen (14) day mark.” The Agreement also provided that Complainant “will remain in a pay status until the issuance of a final discipline (less than removal) and her return to work or the decision of a Proposed Letter of Removal.” The Agreement established the Agency’s payment obligations and leave categorization from the date Complainant was placed on EP, July 19, 2018 through November 26, 2018, the date of the Agency’s decision on Complainant’s NOR. The dates in Claim 2, where Complainant alleges she was not paid (or that the Agency intentionally delayed her payments), fall within the time frame covered under the Agreement. Claim 8 concerns the Agency’s decision to place Complainant on EP on July 19, 2018, which was addressed in her MSPB Appeal. Assuming, arguendo, that Complainant’s “off duty without pay status” can be considered a separate issue from her placement on EP, these matters are fully addressed under the October 9, 2018 Agreement. The allegations in Claims 2 and 8 are essentially a request that the Commission enforce a Settlement Agreement that Complainant entered into through the grievance process. Although it appears Complainant attempted and was unable to obtain her desired enforcement mechanism through the Union, she cannot resolve the matter by attempting use the Commission to lodge an unlawful collateral attack. Disparate Treatment - Claims 10, 12, 13 and 14 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). 2020000348 8 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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. 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. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claims 10 and 12 concern personnel decisions. The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). For Claim 10, we find no evidence in the record that Complainant was ever scheduled to be converted from RCA to Full Time. With respect to her October 2018 conversion to Part-time Flexible (“PTF), the Agency’s legitimate nondiscriminatory reason for placing the conversion in abeyance was Complainant’s EP status. The Labor Relations Manager, EAS-22, (“LRM”) and the (Acting) Rural Analyst, EAS-17 at the time, both testified that to convert an RCA to PTF, the converted employee must be available and able to work at the time of conversion. Complainant could not work while on EP, so she could not be converted. A district-level employee, EAS-17, with knowledge on the matter testified that to “hold the award in abeyance until the situation is resolved” would be the correct action where the RCA up for a conversion is on EP.” In addition to policy, the Agency provides a business judgment explanation, that abeyance also prevented unnecessarily expending administrative resources on a conversion, as there was a possibility that Complainant would not return to work. However, S2 testified that Complainant’s status was PFT when she reported to work at Ballantyne Station. The Administrative Assistant to the Charlotte Postmaster testified that she submitted the form to remove Complainant’s PTF conversion from abeyance on November 20, 2018, when she learned that Complainant was scheduled to return to work on November 24, 2018. 2020000348 9 As for Claim 12, the Agency’s legitimate nondiscriminatory reason for transferring Complainant to the Ballantyne Station, was business necessity. LRM testified that Ballantyne Station was the largest rural station in Charlotte, had the most vacancies for Part-Time Flexible employees, such as Complainant. Additionally, Route 57, which Complainant had been holding down at Steele Creek Station, had been filled by a bid employee. LRM also testified that she met with M1 and assisted her with applying the formula used to determine which carriers to transfer, in accordance with the CBA. In accordance with Agency policy, LRM testified that PFTs are assigned “where needed not to their desires.” For Claims 13 and 14, the Agency’s legitimate nondiscriminatory reason for Complainant’s leave denials and LWOP in December 2018 involve an administrative error where the Agency failed to transfer Complainant’s finance number, which is necessary to input her hours in order to get paid, from Steele Creek Station to Ballantyne Station. Although Complainant was no longer on the roster, Steele Creek Station was notified instead of Ballantyne Station when Complainant called out, and time records were still generated for Complainant through Steele Creek Station. An additional complication arose because Complainant’s former route had been filled, so she was recorded as LWOP at Steele Creek Station, and S1 or M1 were prevented from simply recording annual or sick leave under Complainant’s old route number, as two people cannot be paid for the same route. Agency policy provides that sick and annual leave must be authorized by an employee’s supervisor. S2 was unaware of Complainant’s leave requests because Ballantyne Station was not notified when she called out, and Complainant did not contact Ballantyne Station directly to let S2 know she was calling out and request leave. Also, Complainant initiated the leave request with S1 instead of S2 on December 20, 2018, in the midst of the Agency’s busiest season. S1 did not know how to input Complainant’s leave after her transfer, and was not authorized to do so, since she was no longer Complainant’s supervisor. S1 advised Complainant to ask S2 to call Steele Creek Station and request the leave. S2 testified that she did not have access to the system yet, so she asked another supervisor (“S3,” male) to assist her. S3 did not know how to input leave due to Complainant’s transfer. Complainant was understandably frustrated, as the Union provided detailed instructions on how to input her leave using her finance number. Both the LWOP and annual and sick leave issues were resolved by January 24, 2019. Although Complainant alleges that the actions taken in Claims 10, 12, 13, and 14 were because of her sex, sexual orientation, and/or reprisal, aside from bald statements, she provides no evidence that the legitimate nondiscriminatory reasons the Agency provided were pretext for discrimination. See Cedrick S. v. Dep’t of the Treas., EEOC Appeal No. 2020001495 (Sept. 17, 2020) (the complainant’s self-serving statement that he had “common knowledge” of “the Agency’s pattern and practice of discrimination and retaliation” is insufficient to prove that the Agency’s stated reasons for his non-selection were pretextual), see also, e.g., Complainant v. United States Postal Serv., EEOC Appeal No. 0120140054 (Sept. 23, 2014) (“Complainant’s belief alone did not establish that the alleged events occurred because of her protected bases”). 2020000348 10 Complainant did not demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017), see also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). Complainant has failed to prove by a preponderance of the evidence that the actions taken by the Agency were a pretext for unlawful discrimination. Harassment/Hostile Work Environment - 1, 3, 4, 7, and 9 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 her race, color, and/or prior EEO activity. Only if Complainant establishes both hostility and discriminatory motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). As Complainant did not establish discriminatory intent for the claims we previously discussed, they will not be included in this hostile work environment/harassment analysis. After thoroughly reviewing the record, the remaining harassment allegations, even when considered together, and assumed to have occurred exactly as Complainant describes, involve common workplace occurrences or isolated incidents that, while unpleasant, are insufficient to establish a hostile work environment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) (routine work assignments, instructions, and admonishments, are all “common workplace occurrences” that do not rise to the level of harassment). Complainant’s feeling that she is singled out by Management, even if true, is insufficient, to establish the requisite severity and pervasiveness where the alleged harassment is a “common workplace occurrence.” See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (the complainant’s allegations that her "work duties and time in and out of the office were closely monitored on a daily basis; and she was treated more harshly and unprofessionally by her supervisor than other employees" were "common workplace occurrences."). Further, even if done in a confrontational manner, a supervisor questioning an employee about work duties is also a "common workplace occurrence." See Agnus W. v. United States Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016) citing Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). We note that the alleged actions all fall within Managerial discretion as well. For Claim 1, Management’s request that Complainant provide documentation to support her sick leave, is a common workplace occurrence of a supervisor making a request within the scope of their authority. Contrary to Complainant’s assertions, Management’s actions were consistent with the Agency’s policies within the Employment and Labor Manual (“ELM”). 2020000348 11 Complainant cites ELM 513.361, which provides that for “periods of absence of 3 days or less, supervisors may accept the employee's statement explaining the absence.” However, nothing in the provision says that supervisors “must” accept an employee’s statement without documentation. In relevant part, ELM 513.361 goes on to state that “medical documentation or other acceptable evidence of incapacity for work… is required… when the supervisor deems documentation desirable for the protection of the interests of the Postal Service.” Reliable attendance is in the interest of the Agency. A quick glance at the record shows that Complainant calls out on a regular basis, significantly more than other RCAs.5 According to M1, Complainant’s absences and late arrivals adversely impacted other carriers. S2 testified that while Complainant has been “a great employee and joy to work with,” she has “attendance issues” since her transfer. Claim 3 concerns investigative interviews that did not result in a disciplinary action, which are also common workplace occurrences. Given the time frame, two instances within three weeks, the interviews were also isolated incidents. Even considering Complainant’s assertion that the sole purpose of the interviews on August 6, 2018 was to intimidate and harass her, because she was called in 3 weeks into her EP and they did not concern her EP, these interviews were not sufficiently severe or pervasive to constitute harassment. The NOR issued to Complainant for improper recording of her work hours in Claim 7 and the underlying allegation that Complainant was “stealing time,” in Claim 4, are unaccompanied by a concrete action, so they are also isolated incidents of alleged harassment. Likewise, Claim 9 describes an isolated incident when Management threatened to call the police if Complainant did not leave the premises. While understandably stressful for Complainant, this isolated incident was not so severe as to rise to the level of harassment. New Claims Raised on Appeal On appeal, Complainant raises a new claim of reprisal. Specifically, Complainant explains that she returned to work at Steele Creek Station in October 2019, and it was doing well until January 2020, when S1 returned. Complainant alleges that as retaliation for the EEO activity related to the actions in the instant complaint, S1 has subjected her to constant harassment. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… the complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. §1614.101; Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). 5 As Complainant states that she frequently contacts the EAP, appears to require doctor appointments on a regular basis, and argues that she lacks documentation because sometimes she feels she needs to call out for “feeling overwhelmed with a situation,” Complainant may consider whether she requires a reasonable accommodation, and if so, raise the matter with her supervisor or EEO counselor. 2020000348 12 However, these new allegations will not be adjudicated in this decision, as they were not included in Complainant’s formal complaint. If Complainant wishes to pursue additional harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). 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. 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). 2020000348 13 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. 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 20, 2021 Date