[Redacted], Cathie K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2021001279 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathie K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001279 Agency No. 4B-070-0129-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 2, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Iselin Post Office in Iselin, New Jersey. On March 27, 2020, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her and subjected her to a hostile work environment based on sex (female), age (56), and in reprisal for prior protected EEO activity2 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. 2021001279 2 1. on February 13, 2020, the Postmaster sent an email to an attorney containing false information about Complainant receiving back pay; 2. on March 9, 2020, the Postmaster aggressively grabbed a tray of mail and hit Complainant’s left arm; 3. on March 12, 2020, the Postmaster yelled and belittled Complainant on the workroom floor; 4. on March 12, 2020, Complainant was not provided a vehicle to deliver the mail; 5. in March of 2020, Complainant was required to knock on a customer’s door while she was delivering mail, which she alleged was a safety hazard; 6. on March 26, 2020, Complainant was clocked off the time clock without her authorization; 7. on March 26, 2020, the Postmaster failed to follow the Covid-19 regulations when he did not stand six (6) feet away from Complainant, requested Complainant’s badge without wearing gloves, and had Complainant sit in a small room with the union representative; and 8. on March 26, 2020, Complainant was issued a Notice of Removal. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant did not respond. On November 2, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant, through her representative, indicates that claims 2 and 8 have been resolved. Therefore, we need not address claims 2 and 8 further in our decision below. 2 Complainant testified that she had filed prior complaints where she identified the Postmaster in the instant complaint as the responsible management official. Complainant explained that she withdrew all complaints except one, after she signed a last chance agreement. 2021001279 3 ANALYSIS AND FINDINGS As an initial matter, Complainant argues on appeal that she “believe[s] a hearing is at least warranted” to address her remaining claims. However, we note that the Agency issued Complainant a notice of right to request a hearing or a final decision. When Complainant did not respond, the Agency issued its final decision based on the evidence developed during the investigation. Complainant may not request a hearing for the first time on appeal. Disparate Treatment - (Claims 4 and 6) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record supports that the Agency articulated legitimate non-discriminatory reasons for its actions. No Vehicle (Claim 4) Complainant testified that she was required to share a vehicle with another employee without protective equipment which jeopardized her safety because COVID-19 social distancing requirements were not being enforced. However, the Postmaster explained that Complainant was not provided her own vehicle because her driving privileges were suspended after she crashed the Agency’s vehicle. 2021001279 4 Because Complainant’s license was suspended, she had to share a vehicle with another City Carrier. Nevertheless, the Postmaster clarified that Complainant, and all employees, had access to personal protective equipment. Clocked Off Time (Claim 6) The Postmaster testified that he instructed Complainant to end her tour. However, Complainant refused. The Postmaster explained that he subsequently ended Complainant’s tour. After careful consideration of the record, we conclude that, neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex, age, and in reprisal for prior protected EEO activity. Claims 4 and 6 are also precluded from Complainant’s harassment claim based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Discriminatory Harassment - (Claims 1, 3, 5, and 7) To establish a claim of discriminatory 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 sex, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. False Information (Claim 1) The Postmaster denied sending false information. The Postmaster explained that an attorney informed him that, pursuant to the terms of a settlement agreement Complainant had with the attorney’s client, Complainant would be required to pay the client if Complainant had received 2021001279 5 backpay. The Postmaster further explained that he confirmed that Complainant had received backpay, and he testified that this information was not false. Email correspondence in the record indicates that the Postmaster informed the attorney that Complainant had received backpay. Yelling Incident (Claim 3) The Postmaster denied yelling at Complainant or interrupting her on the date at issue. The Postmaster testified that “nothing occurred” on this date. Requirement to Knock on Customer’s Door (Claim 5) The Postmaster denied telling Complainant to knock on any resident’s door to ask to use the bathroom while she was delivering mail. Rather, the Postmaster explained that he informed Complainant that she could use the restroom at a restaurant she has previously used. COVID -19 Violations (Claim 7) The Postmaster acknowledged that he held an office meeting with Complainant and the union steward. Because the meeting involved a discussion regarding Complainant’s removal, the Postmaster explained that the matter needed to be discussed privately. Nevertheless, the Postmaster stated that he was stationed more than six feet away from both Complainant and the union steward and he was in compliance with COVID-19 social distance requirements. Considering these claims, even if true, Complainant has not produced evidence that considerations of her sex, age, or retaliatory animus motivated management’s actions toward Complainant. The record supports that the Postmaster denied providing false information regarding Complainant’s backpay, denied yelling at Complainant, and denied instructing Complainant to knock on resident’s doors to ask to use the restroom while delivering mail. Additionally, the record indicates that the Postmaster remained six feet away from Complainant in the office during the meeting to discuss her removal. Beyond her bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s sex, age, or reprisal for prior protected EEO activity. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, supra. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 2021001279 6 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). 2021001279 7 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 August 9, 2021 Date