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

Equal Employment Opportunity Commission

Jan 26, 2021

Appeal No. 2020000393 (E.E.O.C. Jan. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Berenice R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000393 Hearing No. 430-2017-00389X Agency No. 1K-272-0010-16 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission),2 pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 15, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 On appeal, Complainant states that the Agency did not issue a final order, and that the Administrative Judge’s decision became final on September 22, 2019. However, the Agency issued a final order on August 15, 2019, but we note that it is not clear if Complainant received the Agency’s final order and the Agency did not challenge the timeliness of Complainant’s appeal. As such, we consider Complainant’s appeal to be timely. 2020000393 2 ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age, disability, color, race or sex, or in reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency’s Network Distribution Center in Greensboro, North Carolina. Complainant stated that on May 30, 2016, she was told to report to work at 7:00 p.m., instead of her usual start time of 3:00 p.m. Complainant stated that the schedule was not posted a week in advance and that she did not request a schedule change. Report of Investigation (ROI) at 13, 161.3 Complainant stated that on June 10, 2016, she asked a Supervisor, Distribution Operations (SDO) to ask that someone stop talking “shit” about her, and that SDO stated that Complainant should not use that word. Complainant stated that she responded that “shit” is in the dictionary and it means defecation. Complainant stated that SDO instructed her to punch out and go home. ROI at 167. Complainant stated that she spoke with a Manager, Distribution Operations (MDO) (age 49, White, white, female) about requesting leave for July 2, 2016, to care for her grandson. Complainant stated that MDO instructed her to submit a request for annual leave, but that she might get leave without pay. Complainant stated that on July 6, 2016, SDO conducted a pre- disciplinary interview (PDI) and asked her about “calling in” on a Saturday before a holiday. ROI at 63. Complainant stated that on July 23, 2016, she was the senior mail handler working the section, and that SDO informed her that she would be “sent out.” Complainant stated that she informed SDO that she could not be sent out because she was the senior employee. ROI at 229. Complainant stated that she was subjected to a hostile work environment in September 2016, when she was not paid for the Labor Day holiday. ROI at 175. On November 2, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Caucasian), sex (female), color (white), disability (post-traumatic stress disorder, and environmental and seasonal allergies) and age (52), and in reprisal for prior protected EEO activity (Agency case number 1K-272-0005-16) when: 3 We note that Complainant’s affidavit is not legible, and that the details of Complainant’s allegations are taken from the Counselor’s Report, the Investigative Summary, and the affidavit questions asked to management officials. In its opposition brief, the Agency noted that it was unable to obtain a more legible copy from the EEO investigator, Complainant, or from any other source. The Agency stated that it relied on the facts as described in the Investigative Summary, which presumably was prepared when a more legible copy of Complainant’s affidavit was available. 2020000393 3 1. on May 30, 2016, her holidays work hours were changed; 2. on June 10, 2016, she was sent home early after using profanity on the workroom floor; 3. on July 6, 2016, she was subjected to a PDI; 4. on July 23, 2016, she was required to work outside of her section; and 5. in September 2016, she was subjected to harassment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 14, 2019, the AJ assigned to the case granted the Agency’s June 24, 2019, motion for a decision without a hearing and issued a decision without a hearing.4 As an initial matter, the AJ noted that Complainant filed a Motion to Compel on June 24, 2019, in which she alleged that the Agency failed to respond to her discovery request. The Agency responded that Complainant served discovery past her deadline, and the AJ denied Complainant’s Motion to Compel. The AJ then found that there were no genuine issues of material fact which would warrant a hearing. The AJ found that the record was devoid of any evidence that the Agency’s articulated reasons were pretextual or rooted in discriminatory animus, and she granted summary judgment in the Agency’s favor. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s contentions On appeal, Complainant states that she was filing her appeal because the Agency failed to issue a final decision following the AJ’s decision and order. Complainant also asserts that she filed a Motion to Compel, which was not addressed. Complainant states that the discovery period was between March 11, 2019, through June 7, 2019, and that she submitted her discovery request during that time period, but she did not get a response. 4 The AJ noted that Complainant did not respond to the Agency’s motion; however, the record contains a copy of Complainant’s Response to Agency Motion For Decision Without Hearing, dated June 30, 2019. 2020000393 4 Complainant states that the Agency has an advantage over her because she is not an attorney, and that things were “slanted” towards the Agency’s success. Complainant requests a hearing based on “many disagreements” with the AJ’s decision. Agency Contentions The Agency asserts that Complainant did not offer specific evidence that management officials were motivated by her protected classes, or that similarly situated employees outside her protected classes were treated more favorably. The Agency argues that even if Complainant established a prima facie case of discrimination, management officials articulated legitimate, nondiscriminatory explanations for their conduct, and that Complainant has not demonstrated pretext for discrimination. The Agency also argues that Complainant did not show that the Agency’s actions amounted to unlawful harassment. The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS 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 the 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 Chap. 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”). Decision without a hearing 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). 2020000393 5 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. 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 stated that she had “many disagreements” with the AJ’s decisions, but she did not identify any genuine dispute of material facts on appeal. We note that the AJ stated in her decision that Complainant did not respond to the Agency’s Motion for a Decision Without a Hearing, but the record contains Complainant’s opposition to the Agency’s motion. However, Complainant did not raise any genuine dispute of material facts and only made unsupported allegations of discrimination and harassment in her response. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant argued that the AJ erred when she did not respond to her Motion to Compel; however, the AJ denied Complainant’s motion in her decision without a hearing. While Complainant asserted that her request for discovery was timely filed within the discovery period, we note that the AJ’s Order on Initial Conference, Deadlines, and Record Completion specified that discovery must be initiated on or before March 11, 2019, and that Complainant’s discovery request was sent to the Agency on April 2, 2019, which was past the deadline. As such, we find that the AJ properly issued a decision without a hearing. 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 2020000393 6 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 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age, disability, color, race, sex, and protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, MDO stated that May 30, 2016, was a holiday and that Complainant volunteered to work. MDO stated that they did not need Complainant to arrive at 3:00 p.m. because there was no supervision and they were not running mail. MDO added that the schedule was posted and that a form to change an employee’s hours is not required if the employee is working on an off-day. ROI at 161-2. Regarding claim 2, MDO stated that SDO informed her that he put Complainant off the clock for using profanity.5 MDO stated that Complainant defended herself by stating that “shit” and “damn” were not curse words, and that SDO asked Complainant to stop several times. MDO stated that SDO was a new supervisor and did not know the proper procedure and should have obtained a concurrence from a Human Resources manager. MDO stated that she provided Complainant with administrative leave for the remainder of the day. ROI at 167-8. For claim 3, MDO stated that she believed that SDO conducted several PDIs because Complainant had an “extremely high” number of unscheduled absences. MDO stated that she is certain that SDO did not issue any discipline as a result of the PDI. ROI at 172. Based on a review of the instant record, it does not appear that the investigative interview resulted in any discipline or other adverse action. See Blake v. U.S. Postal Serv., EEOC Appeal No. 0120063749 (May 1, 2007). Regarding claim 4, an Acting Manager, Distribution Operations (AMDO) (age 53, Black, black, female) stated that employees are sent out of a section based on seniority and that SDO was not aware that Complainant was not the junior employee until she informed him. AMDO stated that when Complainant brought this to her attention, she instructed SDO to not send Complainant. ROI at 229-30. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were 5 The EEO investigator noted that SDO did not return an affidavit for this complaint because he was on military leave from November 2, 2016, through December 2, 2017. ROI at 54. 2020000393 7 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant only made bare assertions that management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. In addition, to the extent that SDO erred when he sent Complainant home and told her that he was sending her out of the section, we find that a mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018). As such, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, color, race or sex, or in reprisal for protected EEO activity. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on her age, disability, color, race, sex and protected EEO activity, and that she was subjected to unwelcome verbal conduct. However, Complainant did not show that the complained of actions were based on her protected categories. For clam 5, MDO stated that Complainant was not paid for the holiday because she was on a leave without pay status the day before and after the holiday. MDO stated that the time and attendance system automatically will not pay an employee for a holiday if she is not in a pay status on the day before or after a holiday. ROI at 175. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her age, disability, color, race or sex, or in reprisal for protected EEO activity 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age, disability, color, race or sex, or in reprisal for protected EEO activity. 2020000393 8 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). 2020000393 9 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 January 26, 2021 Date