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

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2021001838 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatriz P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001838 Hearing No. 430-2020-00023X Agency No. 4K-280-0054-19 DECISION On January 7, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 9, 2020 final action 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. BACKGROUND On November 3, 2018, Complainant was hired as a City Carrier Assistant (CCA) at the Agency’s Charlotte Minuet Carrier Annex in Charlotte, North Carolina, subject to a 60-day probationary period. On May 13, 2019, Complainant filed a formal EEO complaint alleging the Agency discriminated against her on the bases of national origin (African-American), sex (female), color (brown), 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. 2021001838 2 disability,2 and Genetic Information (female mother of minor dependent and Genetic Carrier) when: 1. on January 5, 2019, Complainant was assigned a Postal Vehicle which had an inoperable emergency brake; 2. on or about January 19, 2019, Complainant was separated during her probationary period for failure to achieve employment expectations, with an effective date of January 28, 2019; 3. on November 19, 2018 until December 3, 2018, the Manager Customer Service (Minuet Station CCA installation management official), improperly processed Complainant’s schedule accommodation request for childcare purposes; 4. Complainant was subjected to discriminatory pay practices when she was not scheduled to work at the Minuet Station CCA between December 22, 2018 and January 2, 2018, and her start date was not properly updated commensurate with her peers; 5. on January 4, 2019, Complainant was issued an improper and retaliatory performance evaluation; and 6. Complainant was issued an attendance warning on January 14, 2019. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Summary Judgment Without a Hearing. Complainant responded to the motion. On November 30, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 2 The record reflects that Complainant was claiming association with her son who had a “suspected” medical condition. However, Complainant now indicates that it has been determined that her son does not have this condition. 2021001838 3 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove her harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, religion, disability, age, and in reprisal for prior EEO activity. Only if Complainant establishes both of these 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). The record developed during the investigation establishes that during the relevant period Complainant was a probationary City Carrier Assistant (CCA). On January 3, 2019, Complainant was given a 60-day evaluation. She was given three unsatisfactory ratings in that evaluation. Complainant did not work from January 10, 2019 to January 14, 2019. As a result, Complainant’s supervisor sent Complainant an absence inquiry dated January 14, 2019. The inquiry stated that records indicated that Complainant had been absent since January 10, 2019, and had failed to advise management that she could not report to work as scheduled. On January 15, 2019, Complainant returned to work. However, Complainant was absent without official leave (AWOL) on January 18, 2019. On January 19, 2019, Complainant’s supervisor initiated a disciplinary action for Complainant’s termination during her probationary period. The request indicated that removal was requested because Complainant had failed to demonstrate satisfactory performance and accomplishing tasks in a timely manner as well as being AWOL on January 18, 2019. Complainant’s last day in a work status was January 19, 2019. On January 22, 2019, Complainant was issued a Notice of Separation in which the supervisor placed her on notice that she was being separated during her probationary period for failure to achieve employment expectations. 2021001838 4 The Acting Manager Distribution (African-American, female) stated that while the Manager Customer Service was Complainant’s manager from November 2018 to December 2018, she became Complainant’s supervisor in January 2019. The supervisor stated that during the relevant period, Complainant never notified her about a vehicle assigned to her with an inoperable emergency brake. The supervisor was the recommending official that Complainant be terminated during her probationary period for unsatisfactory performance. The record contains a copy of the Notice of Separation dated January 22, 2019, in which the supervisor stated that during her probationary period Complainant was evaluated on work quantity, work quality, dependability, work relations, work methods and personal conduct. She noted that Complainant was rated unsatisfactory in three of the work factors. Despite Complainant being repeatedly counseled on her performance, there was no improvement. The supervisor stated that Complainant failed to report to work on January 16, 2019 and failed to notify management of her inability to report for work. In addition, she stated that Complainant failed to develop the skills necessary to continue her employment as a CCA. The Manager Customer Service (“Manager”) (male, unknown national origin, color) explained that CCA’s do not have set schedules or guaranteed hours, and have frequent schedule changes based on the needs of the Annex. He noted that Complainant asserted that she had to request on a daily basis to be released from work around 7:00 p.m. or 8:00 p.m. for childcare purposes. The Manager stated that he told Complainant that he would handle schedule conflicts on a case by case basis. In her decision, the AJ also noted in support of Complainant’s disability and GINA claim, Complainant alleged while she does not have a disabling condition, but that she was subjected to improper treatment as a result of her status as a single mother of two children and her status as “Female Mother of Minor Dependent, and Genetic Carrier.” The AJ determined, however, that caregiver status is not protected under Title VII. As a result, the AJ determined that Complainant did not state a cause of action for disability or GINA discrimination. We find that the AJ correctly made this determination. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claims that her treatment was the result of her national origin, sex and color. Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021001838 5 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination.3 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. 3 On appeal, Complainant does not challenge the May 30, 2019 partial dismissal issued by the agency regarding two other claims (that she was discriminated against on the bases of national origin, sex, color, disability, and genetic information when on January 14, 2019, she filed a grievance that was never resolved or addressed with her). Therefore, we have not addressed this issue in our decision. 2021001838 6 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. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations June 8, 2021 Date