[Redacted], Chanell A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionDec 9, 2021Appeal No. 2021002274 (E.E.O.C. Dec. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanell A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002274 Agency No. 4G-720-0046-19 DECISION On March 2, 2021, 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 September 28, 2020, 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency’s Whitehall Post Office facility in Pine Bluff, Arkansas. On June 24, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), color (Brown), disability, age, and reprisal for prior protected EEO activity. The Agency initially determined that the complaint consisted of a single claim: on December 20, 2018, Complainant was placed on Emergency Placement. The Agency dismissed the complaint for untimely EEO Counselor contact. 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. 2021002274 2 The Agency also noted that, while Complainant raised the issue of her removal in the pre- complaint process, she did not raise it in her formal complaint. Thus, the Agency found she abandoned this claim. Complainant appealed to the Commission. However, in EEOC Appeal No. 2020002228 (May 5, 2020), the Commission issued a decision finding that the Agency improperly dismissed the complaint. In so doing, the Commission found that Complainant alleged an ongoing hostile work environment, comprising numerous incidents, including being placed on emergency placement without pay, subsequently being placed in an off-duty status with pay (administrative leave), and being issued a Notice of Removal on May 9, 2019. Based on these events, the Commission found that Complainant timely initiated contact with an EEO counselor with respect to her hostile work environment claim. Accordingly, the Commission ordered the Agency to process the remanded ongoing hostile work environment claim. On remand, the Agency characterized the claims as alleging discriminatory harassment based on race, color, age, disability, and retaliation for prior EEO activity when: (1) on December 20, 2018, she was placed on Emergency placement; and (2) on or around May 9, 2019, she was issued a Notice of Removal. The Agency conducted an investigation which produced the following pertinent facts: Regarding her alleged basis of reprisal for prior EEO activity, Complainant attested that she filed claims on December 1, 2018, April 10, 2017, and January 1, 2015, that involve two of the named responsible management officials in the instant complaint: a Supervisor, Customer Services (Supervisor) and a Manager, Customer Services (Manager). Supervisor and a Postmaster (Postmaster), another named responsible management official in the instant case, attested that they were aware of Complainant’s prior EEO activity, but Manager attested that she was not aware of it. Regarding her alleged basis of disability, Complainant attested that she had hypertension and Human Resources and management were made aware of her disability through her FMLA documentation which identified her work restrictions. Complainant indicated she had work restrictions limiting her lifting, sitting, driving, standing, waking, climbing, kneeling, and grasping and her restrictions were for overexertion and limited job-related stressors, which limited her to not working beyond an 8-hour day, 40-hour work week. Postmaster, Manager, and Supervisor denied knowledge of Complainant’s medical conditions. Postmaster indicated that he was aware that Complainant was limited to working 8 hours per day as a work restriction; Manager indicated she had no knowledge of Complainant’s work restrictions; and Supervisor indicated she was not aware that Complainant had any work limitations other than working an 8-hour day. A December 21, 2018 memorandum indicates that Complainant was placed in an emergency non-pay, off-duty status, effective December 20, 2018, due to allegations that she made threats to another employee in the employee parking lot, on Agency premises. 2021002274 3 It provides that Complainant was observed and overheard by other employees, threatening to shoot another employee, while in the employee parking lot. According to the Agency, the emergency placement was in accordance with the Union Agreement providing that an employee may be immediately placed on an off-duty status without pay but remain on the rolls, where the allegation involves intoxication, pilferage, or failure to observe safety rules and regulations, or, in cases where retaining the employee on duty may result in damage to the Agency’s property, loss of mail or funds, or where the employee may be injurious to self or others. Complainant alleged that management placed her on Emergency Placement in retaliation for OSHA and other complaints that she filed over the years. She alleged that the Threat Assessment Report that was provided to the Postal Inspection Services and Emergency Placement was fabricated and she denied threatening anyone. She alleged that her race and color were factors because she was the only African-American who followed through on any complaints and that Postmaster is not African-American and does not like when others, especially African- Americans, stand up to him. She alleged that her age was a factor because she had recently been promoted and, within 30 days, she was informally demoted, and a younger employee was doing her higher-level assignment. She alleged her disability was a factor because she had hypertension and had a reasonable accommodation, noting that after she received the accommodation, she was subjected to increasing harassment including being called a “gimp.” Complainant attested that she was no longer on Emergency Placement, but she had not returned to work. She attested that she was placed in a Leave Without Pay (LWOP) status. Postmaster attested that he placed Complainant on Emergency Placement. He attested that there was a Pre-Disciplinary Interview because a credible threat existed and Complainant’s lack of cooperation during an investigation by the Inspection Service, including not answering their questions. He attested that the Inspector escorted Complainant to her car to determine whether any weapons were present. He attested that management followed Agency policies and were in accordance with the Union Agreement and explained that Complaint was placed in Emergency Placement for just cause because of the nature of the credible threat which was determined on December 20, 2018 by the Postal Inspector and Complainant’s refusal to cooperate with a Postal Investigation, both of which were violations of Agency policies relating to conduct. A January 7, 2019 Investigative Memorandum indicates that there was an investigation of threats against a named Carrier (Carrier) from Complainant. It provides that, on December 20, 2018, the Inspector was contacted about an employee complaint of an employee threatening violence and The Inspector made contact with Postmaster, who reported that Carrier had stated that Complainant threatened to shoot him while they were in the back lot of the facility. It provides that the Inspector questioned Complainant about the incident and Complainant denied threatening anyone and refused to answer any further questions, stating this was a “waste of time.” It provides that Postmaster advised Complainant that she was being placed on emergency leave pending the investigation of the threats. 2021002274 4 It indicates that Inspector escorted Complainant from the building until her daughter arrived and Complainant made a comment about saying “something about high bullet,” at which time Complainant’s daughter advised Complainant not to say anything further. The Memorandum indicates that the Inspector contacted Carrier and Carrier acknowledged making the complaint against Complainant. It indicates that Carrier knew Complainant was upset about Carrier’s bidding for a route that Complainant wanted and, while they were in the back lot of the facility, Complainant was “mad and being loud” about Carrier bidding for the route and Complainant called Carrier a “crazy sum-bitch.” It indicates that Complainant made several statements to Carrier, including that, she would “high bullet” him if she saw him on his route, which Complainant clarified by stating, “I’ll shoot you!” It indicates that Carrier stated he was scared and stopped talking to her and felt nervous during the incident. It also indicates that Carrier called a friend (Witness) on the telephone who overheard the conversation. The Memorandum indicates that the Inspector contacted Witness who attested to overhearing the conversation as described by Carrier, including Complainant’s statements, “I’ll high bullet you” and “I’m gonna shoot you.” It indicates that Complainant provided a statement by email. The statement generally indicates that Complainant denied making threats, recites her history of employment with the Agency, and asserts that it is all based on hearsay. The record includes memoranda of interviews with Carrier and Witness. An Assault and Threat Specialty Report supports the Memorandum, including additional details of the events at issue. A February 6, 2019 Notice to Report for Investigative Interview provides that Complainant was to report for an interview following her December 21, 2018 placement in an off-duty emergency placement due to accusations that Complainant made threats to another employee in the parking lot at the Agency facility, on February 8, 2019. It also provides that, should Complainant fail to respond, it would be considered a waiver of her right to respond to the allegations, and corrective action, if deemed appropriate, will be drafted accordingly. The record shows that Complainant was present at the Investigative Interview. A May 9, 2019 Notice of Removal provides that the Agency proposed to remove Complainant no sooner than 30 calendar days from her receipt of this notice, effective approximately June 14, 2019. It provides that the charge was improper conduct, specifically, the alleged events on December 20, 2018, during which Complainant made threatening statements to Carrier, including “I will high bullet you” and “I will shoot you.” It indicates that Complainant appeared for an Investigative Interview on February 8, 2019 with her Union Steward. It also indicates that, during the investigative interview, Complainant acknowledged having a conversation with Carrier on the date at issue but denied using the phrase, “high bullet,” and calling Carrier a “crazy son of a bitch.” It also indicates Complainant failed to report to her scheduled IMP on January 10, 2019 and follow up Investigative Interview on April 24, 2019. 2021002274 5 It provides that, upon careful review of Complainant’s responses during the investigative interview, the absence of her participation in the follow-up interview, and all the available information, the Agency found Complainant’s conduct was improper, her actions and behavior were unacceptable, and she was in violation of Agency regulations regarding employees’ obligations to cooperate with postal investigations and discharge their assigned duties conscientiously and affectively, as well as those regarding no tolerance of violence or threats and a zero-tolerance for workplace violence. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant makes numerous arguments in support of her appeal. She submits additional evidence in support of her claims, details the events, and asserts that there were inconsistencies in the threat assessment reports and investigative summary, as well as the Agency’s second final decision. She also asserts her complaint concerns “employer liability for ‘just cause’ provisions” and moves for sanctions and a default judgment against the Agency. She also submits a motion to amend and consolidate the instant appeal to include additional claims of discrimination and/or retaliation. The Agency has not submitted a brief or statement in response. ANALYSIS AND FINDINGS Standard of Review 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”). 2 Although Complainant requested a hearing, the AJ determined the request was untimely and returned it to the Agency for the issuance of a final decision. 2021002274 6 Disparate Treatment Complainant’s allegations regarding the series of events at issue give rise to claims of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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, n. 13; 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. Tex. Dep't of Cmty. 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. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming, arguendo, that Complainant established a prima facie case of discrimination or reprisal, we find her claims would still fail. We find the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency explained that the events at issue arose from a report that Complainant made a threat of violence against another carrier at the Agency’s facility. Following the report of the alleged incident, the Agency contacted the proper authority to investigate the matter, in accordance with Agency policies. The Agency explained that Complainant was not fully cooperative during the investigative process and was placed in Emergency Placement for just cause because of the nature of the threat and her refusal to cooperate with the investigation, both of which were violations of Agency policies relating to conduct. In the interim, she was placed on an off-duty status and provided a Notice of Removal because her conduct was improper, her actions and behavior were unacceptable, and she was in violation of Agency regulations regarding employees’ obligations to cooperate with postal investigations and discharge their assigned duties conscientiously and affectively, as well as those regarding no tolerance of violence or threats and a zero-tolerance for workplace violence. 2021002274 7 Although Complainant has alleged the Agency acted discriminately or in reprisal, the record does not establish that Complainant’s race, color, disability, age, and/or prior protected EEO activity played any role in the Agency’s actions. Therefore, we find she has failed to establish disparate treatment. Harassment Complainant’s allegations give rise to a claim of discriminatory harassment. 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). In other words, 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 a protected basis -- in this case, her race, color, disability, age, and/or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Here, as already concluded above, there is no evidence to support a finding that Complainant's race, color, disability, age, and/or prior protected EEO activity played any role whatsoever in the Agency's actions. Moreover, the Agency provided legitimate, nondiscriminatory explanations for its actions. A finding of harassment is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000). 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. 2021002274 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). 2021002274 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 December 9, 2021 Date Copy with citationCopy as parenthetical citation