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

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020000496 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chantelle M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000496 Hearing No. 410-2018-00314X Agency No. 4K-300-0268-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 8, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected her to discrimination or harassment in reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services Associate (SSA)/Distribution Clerk at the Agency’s Civic Center Post Office in Atlanta, Georgia. 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. 2020000496 2 On July 15, 2017, Complainant emailed her first-line supervisor (S1) (“Negro,” brown) to complain of harassment by a coworker (CW). Complainant stated that she secured her belongings in a file cabinet and discovered that her personal lock and nametag were removed from the file cabinet, and she requested an investigation. Report of Investigation (ROI) at 132. Complainant stated that on July 15, 2017, S1 moved her to the North Highland Office to separate her from CW. Complainant stated that she worked at the North Highland Office until August 11, 2017. ROI at 117. On July 27, 2017, Complainant emailed the Postmaster (PM) (African American, black) stating that his intervention was needed because “a particular clerk” was not held accountable for inappropriate behavior. ROI at 141. PM stated that he spoke to a Human Resources Manager (HRM) (Caucasian), who agreed to have someone conduct an investigation. ROI at 231. HRM stated that she assigned a management official (MO) (African American) to conduct an Initial Management Inquiry Process (IMIP). ROI at 257. On September 22, 2017, MO sent HRM the IMIP report, concluding that there was no evidence of a hostile work environment. ROI at 349-86. Complainant stated that, on or about June 30, 2017, S1 changed her approved sick leave to annual leave. ROI at 123. Complainant filed a grievance, which was settled, and the parties agreed to use sixteen (16) hours of sick leave for June 30, 2017, and July 6-7, 2017. ROI at 158. Complainant stated that in July 2017, S1 required her to provide documentation to use a stool. ROI at 120. Complainant stated that S1 charged her with leave without pay (LWOP) for her approved vacation from August 12-19, 2017. ROI at 124. Complainant filed another grievance, and the Agency agreed to pay Complainant a lump sum for forty (40) hours of annual leave for August 12-19, 2017. ROI at 163. Complainant stated that she was never afforded an opportunity to see the overtime list, and that S1 did not ensure that the opportunity was presented to all employees. ROI at 127. On November 27, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of race (African-American) and color (Dark Brown),2 and in reprisal for prior protected EEO activity (case number 4K-300-0109-17) when: 1. on July 15, 2017, July 17, 2017, October 13, 2017, and October 16, 2017, and other dates, after Complainant notified management officials that CW harassed her, they failed to properly address the matter; 2. on July 15, 2017, Complainant was assigned to a different work location; 3. in July 2017, Complainant was required to provide documentation to use a stool at work; 4. on or about June 30, 2017, Complainant’s sick leave was changed to annual leave; 2 On appeal, Complainant withdrew her claims based on race and color. 2020000496 3 5. on August 12-19, 2017, Complainant’s approved vacation time was changed to forty (40) hours of LWOP; 6. on unspecified dates, Complainant was not permitted to sign the overtime desired list; and 7. on unspecified dates, Complainant was required to provide documentation for Family and Medical Leave Act coverage.3 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. Complainant timely 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 Agency found that Complainant established a prima facie case of retaliation, but that she did not establish a prima facie case of discrimination based on her race or color. The Agency assumed, for the sake of argument only, that Complainant established a prima facie case of discrimination based on race and color, and found that management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency then found that Complainant did not demonstrate that management’s decisions were based on any of her protected classes or that their explanations were a pretext for discrimination. The Agency also found that Complainant did not show that she was subjected to unlawful harassment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s contentions Through her attorney, Complainant argues that she has produced sufficient evidence to show that she was retaliated against by the Agency. Complainant asserts that the Agency’s stated business reasons were untruthful in nature. For claim 1, Complainant argues that the Agency dismissed this claim as untimely, which was incorrect because she alleged a hostile work environment.4 3 The Agency dismissed claim 7 for failure to state a claim because it was a collateral attack on the proceedings of another forum. ROI at 65. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s dismissal of this claim; as such, we will not address it in the instant decision. 4 We note that Complainant’s assertion that the Agency erroneously dismissed claim 1 as untimely is not supported because the Agency did not dismiss the claim and addressed it as part of Complainant’s harassment claim. 2020000496 4 For claim 2, Complainant states that her reassignment to a different work location violated the collective bargaining agreement (CBA), and that she prevailed on her grievance. Regarding claim 3, Complainant asserts that the Agency failed to state a legitimate business reason, and that S1 denied making the request and stated that the Area Manager (AM) (Black, black) requested the documentation; however, AM stated that she was “not involved in that request.” For claim 4, Complainant argues that S1’s statement that Complainant did not have enough sick leave to cover her request was untrue because she filed a grievance and her leave was changed to sick leave from annual leave. Regarding claim 5, Complainant states that S1 stated that she “did not recall” Complainant filing a grievance and having her leave changed from LWOP to annual leave. For claim 6, Complainant notes that S1 stated that the overtime desired list is posted each quarter and that she was unable to locate the lists from the previous year. Complainant asserts that S1 did not state any business reason for why Complainant was not allowed the opportunity to sign the overtime desired list. Complainant argues that she also produced facts sufficient to satisfy the legal requirements to show a prima facie case of retaliation. Complainant requests that the Commission reverse the Agency’s final decision and remand the matter for damages. Agency’s contentions The Agency argues that Complainant has not shown, by a preponderance of evidence, that she was retaliated against for her prior EEO activity. The Agency asserts that Complainant has not shown that the Agency’s legitimate business reasons in this case were pretexual in nature. The Agency notes that a settlement of a matter via the grievance process of the CBA does not establish the elements required of a complainant in a claim before the EEOC, and that Complainant has not presented sufficient evidence to overturn the Agency’s decision. The Agency requests that the Commission affirm its final decision finding no discrimination. 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 Chap. 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”). 2020000496 5 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. 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 retaliation, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that when she received Complainant’s complaint, she contacted AM and PM to request a “threat assessment,” which was conducted by MO. ROI at 196-7. MO stated that she conducted the IMIP on Complainant’s harassment allegation. ROI at 327. MO informed HRM that Complainant seemed to be the problem because she liked to stir things up and cause drama. MO noted that having an onsite supervisor would address most of the problems. ROI at 385. PM stated that he received the results of the investigation finding that there was no harassment, but that there was a need to address some “administrative items.” PM stated that he met with Complainant to inform her of the investigation results and he assigned a supervisor to the Civic Center Post Office. ROI at 232. Regarding claim 2, S1 stated that when Complainant stated that she felt threatened by CW, S1 assigned Complainant to North Highland because her bid assignment included that location. S1 noted that CW was the lead SSA and had additional duties. ROI at 218, 202. AM added that Complainant was a “pool clerk” and could be utilized in multiple units within her assigned pool of units. ROI at 247. For claim 3, S1 stated that AM requested the documentation. AM stated that she was “not involved” in this request, but that she informed management that no clerk was authorized to sit when servicing customers and that she believed that this was a “corporate policy.” ROI at 203, 249-50. Regarding claim 4, S1 stated that Complainant was in a “clock ring error,” and that she did not have enough sick leave to cover her request. S1 also stated that another supervisor (S2) was responsible to inputting Complainant’s leave. ROI at 206-7. For claim 5, S1 stated that Complainant was paid annual leave. ROI at 208. For claim 6, S1 stated that the overtime desired list was posted at the units for any clerk to sign. ROI at 220. 2020000496 6 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 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argues that the Agency’s proffered reasons were untrue and pretexts for discrimination. For claim 2, Complainant states that her reassignment to a different work location violated the CBA, and that she prevailed on her grievance. However, while the settlement agreement for Complainant’s grievance showed that the parties mutually agreed to return Complainant to the Civic Center Post Office, we find that it does not show that S1’s proffered reasons were not worthy of belief or that she violated the CBA. ROI at 163. In addition, Complainant corroborated that North Highland was one of her “pool” locations. ROI at 117. Regarding claim 3, Complainant stated that S1 denied making the request and that AM requested the documentation, while AM stated that she was “not involved in that request.” However, we do not find that this shows that the Agency’s reasons were not credible because AM also stated that she informed the managers that no clerk was authorized to sit when servicing customers. ROI at 203, 249-50. We note that even if AM was not involved in Complainant’s specific request, it is reasonable for S1 to have relied upon AM’s direction that clerks were not authorized to sit and attributed the documentation request to AM. For claim 4, Complainant argued that S1’s statement that Complainant did not have enough sick leave to cover her request was untrue because she filed a grievance and her leave was changed to sick leave from annual leave. We note that the parties settled the matter on August 23, 2017, and the record shows that Complainant had sixteen (16) hours of sick leave available on August 15, 2017. ROI at 158-9. However, Complainant did not provide evidence, nor identified where the evidence was contained in the record, showing that she had sufficient sick leave at the end of June and early July to prove that S1’s statement was untrue. Regarding claim 5, Complainant stated that S1 stated that she “did not recall” Complainant filing a grievance and having her leave changed from LWOP to annual leave. However, we note that Complainant’s leave request does not show that S1 signed it to approve her request. Complainant also provided text messages showing that she sent her leave request to a different manager, and not S1. ROI at 152-4. In addition, the record shows that S2 was the Agency official involved in the settlement agreement for Complainant’s grievance. ROI at 163. Complainant did not provide any evidence that S1 was aware of Complainant’s annual leave request or grievance. As such, we find that Complainant has not shown that S1’s response was not credible. For claim 6, Complainant asserted that S1 did not state any business reason for why Complainant was not allowed the opportunity to sign the overtime desired list. 2020000496 7 However, we note that S1 responded that the overtime desired list was posted for employees to sign, and that Complainant did not provide evidence to support her assertion that the list was not posted. ROI at 220. We find that Complainant did not provide evidence to prove that the Agency’s reasons were not worthy of belief. As such, we find that Complainant did not establish that the Agency retaliated against her for her prior EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of discrimination in reprisal for her prior protected EEO activity. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by retaliation. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment in reprisal for her prior 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 decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment in reprisal for protected EEO activity. 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). 2020000496 8 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). 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 solediscretion to grant or deny these types of requests. 2020000496 9 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 22, 2021 Date