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

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2020002331 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cami C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002331 Hearing No. 510-2019-00098X Agency No. 4G-335-0089-18 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 7, 2019 final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Agency’s decision is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Sand Lake Branch Post Office in Orlando, Florida. During the relevant time, Complainant’s supervisor was the Supervisor of Customer Services (SCS 1). On March 31, 2018, Complainant filed a formal complaint, which was subsequently amended, alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African American), sex (female), and age (over 40), 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. 2020002331 2 1. On February 8, 2018, she was yelled at by management and threatened to be disciplined; 2. On February 27, 2018, she was called a “Rat” and denied the opportunity to speak to the manager; 3. On February 27, 2018, management allowed a package to be delivered to a coworker living on her route without following proper delivery procedures; 4. On March 6, 2018, she was given instructions to move to operation 613 and threatened to be sent home; and 5. On March 6, 2018, she was told to go back to work and to stop talking to the supervisor or she would be in trouble. Complainant alleged discriminatory harassment based on race (African American), sex (female), and in reprisal (current EEO activity) when: 6. On or about March 20, 2018, she was placed on Emergency Placement; 7. On or about March 25, 2018, she was charged Absent without Official Leave (AWOL) and given an Investigative Interview; 8. On May 16, 2018, she became aware that she was being stalked by management and other postal employees; and 9. On May 16, 2018, she was given an Investigative Interview and she became aware that her arrest report and photo (mugshot) were viewed by her coworkers via a fax and text message. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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, 2020002331 3 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. 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 Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 6, SCS 2 stated that Complainant was placed on Emergency Placement due to her actions during an investigative interview when she became irate and “ended the interview in a belligerent state.” Complainant stated that her race was a factor because race is always a factor. She said that sex was a factor because it is always females that were placed on Emergency Placement. She said her EEO activity was a factor because SCS 2 mentioned to her that he knew she filed a union grievance and EEO matter. Complainant also identified three comparatives (Black, female, over 40, and engaged in prior EEO activity) who she claimed had problems with SCS 1 but were not disciplined. 2020002331 4 Regarding the named comparatives, the Manager Customer Service stated that no other employees (except Complainant) at Sand Lake “had an outburst on the floor and relieved [urinated] themselves in the supervisor[‘s] chair. Nor has stated or threatened ‘put me out [of work].’” Regarding claim 7, the record reveals that an investigative interview was conducted with Complainant regarding Unacceptable Attendance/AWOL for a March 16, 2018 incident where she told her supervisors she was stressed out and going home due to discrimination against her. Complainant was instructed to provide documentation to substantiate her absence. When Complainant did not provide acceptable documentation, she was marked AWOL. The Agency noted her claims of discrimination were investigated and the Agency found no discrimination or disparaging treatment by the Sand Lake office, which it stated made her accusation and reason for abandoning her assigned duties and AWOL unacceptable. Complainant also told management she was stressed and going home on March 17, 2018, and was found to have abandoned her duties for a second day in a row. Complainant stated AWOL means she was not at work at all and that is not true in this situation. Complainant stated her race was a factor because she did not believe anyone else was charged with AWOL for leaving work early. She said her sex was a factor because she observes who gets threatened in certain ways. She also claimed that her EEO activity was a factor because it was mentioned to her and she was accused of other things she did not do. Upon review, we find Complainant failed to establish that the Agency’s actions were a pretext for discrimination. Although she claimed that her EEO activity was mentioned to her, she does not specifically identify the context in which her EEO activity was mentioned or establish that the Agency’s actions were motivated by her protected activity. We find Complainant failed to establish by a preponderance of evidence that the Agency’s actions were based on discriminatory animus. To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, sex, age, or reprisal. 2020002331 5 Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020002331 6 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 9, 2021 Date