[Redacted], Chasity C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 25, 2021Appeal No. 2021001446 (E.E.O.C. May. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chasity C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001446 Hearing No. 410-2019-00028X Agency No. 4G-320-0027-18 DECISION On November 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 15, 2020 final action 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. BACKGROUND During the period at issue, Complainant worked as a Rural Carrier at the Agency’s Columbus Main Post Office in Columbus, Georgia. On February 14, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on sex (female) and in reprisal for prior protected EEO activity (engaged in EEO activity in a co-worker’s administrative complaint) 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. 2021001446 2 1. on October 24, 2017 and November 15, 2017, management did not return Complainant’s request leave slips (PS Form 3971); 2. she was not allowed to curtail mail, start early, or case her Delivery Point Sequence (DPS) mail; 3. her sick leave was changed to annual leave; 4. she was embarrassed on the workroom floor when a management official shook fingers in her face and instructed her not to talk to her co-workers; and 5. on January 18, 2018, she requested assistance on her route, and the assistance was given to her male co-worker. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment. Complainant responded to the Motion. On September 30, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its October 15, 2020 final action, the Agency adopted the AJ’s decision. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2021001446 3 Disparate Treatment A claim of disparate treatment is examined under the three-party 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). The undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. The record developed during the investigation establishes that during the relevant period Complainant was a Rural Carrier at the Agency’s Columbus Main Post Office in Columbus, Georgia. The Customer Service Supervisor was her immediate supervisor, and the Postmaster was her second-level supervisor. The AJ noted that in regard claim 1, Complainant has not identified any evidence that management treated the leave request slips (PS For 3971) she submitted on October 24, 2017 and November 15, 2017 any differently than they treated leave requests slips submitted approximately the same time by other similarly situated employees. Complainant’s supervisor (male) explained the PS Form 3971s were posted on the clipboard for Complainant, pursuant to office procedure. He averred that Complainant was not denied any leave and she acknowledged that management approved her leave requests. Regarding claim 2, Complainant alleged that she was not allowed to curtail mail, start early, or case her Delivery Point Sequence (DPS) mail. Both the supervisor and Postmaster stated that Complainant was instructed not to case DPS mail in the office because she was one of the last carriers out of the office and was not meeting the “evaluated time” of her route. They further noted that this was the rule for all rural carriers. Regarding claim 3, Complainant alleged that her sick leave was changed to annual leave, the AJ noted that Complainant’s sick leave was changed to annual leave because the Supervisor Customer Service was covering for Complainant’s supervisor and did not have the appropriate information to know that Complainant was on sick leave rather than annual leave. 2021001446 4 The Supervisor Customer Services stated that Complainant agreed to take her next annual leave as sick leave. Specifically, the Supervisor Customer noted that Complainant’s sick leave was changed to annual leave because she did not properly mark on the PS Form 4240 “Rural Trip Report” when she had leave or did not get information from her supervisor. Regarding claim 5, Complainant asserted that on January 18, 2018, she requested assistance on her route, and the assistance was given to her male co-worker. The AJ noted that Complainant was not provided assistance on the day in question while a male co-worker received assistance because management believed the male co-worker had a greater need for assistance than Complainant did. Beyond her bare assertions, Complainant failed to produce adequate evidence to prove that her sex or prior protected activity played any role in the matters at issue. Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the bases alleged. Harassment 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, sex and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. To the extent that Complainant is alleging that claims 1-3 and 5 are part of her harassment claim, a case of harassment on these claims is precluded based on our findings, discussed above, that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex or by retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding claim 4, Complainant claimed that she was embarrassed on the workroom floor when a management official shook their fingers in her face and instructed her not to talk to her co- workers. The AJ determined that to the extent that Complainant’s supervisor shook his finger in Complainant’s face and instructed her not to talk to her co-workers, he did so because Complainant was distracting her co-workers. Here, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and prior protected activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment claim was also proper. We discern nothing in the present record reflecting that the Agency’s conduct on this issue, or in any other matters, reflects hostile or abusive conduct based on Complainant’s sex or prior EEO activity. 2021001446 5 CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 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. 2021001446 6 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 May 25, 2021 Date Copy with citationCopy as parenthetical citation