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

Equal Employment Opportunity Commission

Mar 9, 2021

Appeal No. 2020003367 (E.E.O.C. Mar. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colleen M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003367 Agency No. 1G-731-0038-19 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 April 2, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tour 2 Laborer Custodian, Level 6 at the Agency’s Oklahoma City Processing and Distribution Center (P&DC) facility in Oklahoma City, Oklahoma. Her immediate supervisor was the Maintenance Operations Supervisor (S1). Complainant has a history of EEO complaints. In October 2012, Complainant had filed an EEO complaint (1G-731-0016-12) alleging harassment based on sex and retaliation by S1. Complainant was transferred to Shartel Station but was reassigned to the Oklahoma City P&DC as a result of a reasonable accommodation and placed under S1’s supervision again. 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. 2020003367 2 The Agency’s complaint system revealed that Complainant had filed five previous EEO complaints. Complainant's EEO complaint against S1 closed on July 21, 2014. Complainant's other cases closed in 2013 and 2014. According to the record, on September 1, 2017, Complainant was diagnosed with acute, traumatic injury to lumbar spine and strain of lumbar and trigger points. She was restricted from performing the following duties: lawn maintenance, using a backpack vacuum and using commercial floor scrubbers and buffers at two post office stations. Complainant stated that, because of her medical restrictions, she began working at the Oklahoma City P&DC on July 9, 2018, and that her managers were aware of her medical condition. She said she is limited to working 8 hours per day, 40 hours per week, no overtime, and has limitations regarding the amount of time that she can perform certain duties or the amount of weight she can move. The record did not include any medical documentation. On August 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (lumbar spine injury), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On June 3, 2019, she became aware her paycheck was incorrect; that her sick leave for May 23-24 had not been entered and on June 4, 2019, her supervisor refused to accept her PS Form 3971 for those dates; 2. On June 11, 2019, her Employee Assignment Worksheet listed 10 routes instead of 2; 3. On June 12, 2019, management accused her of not cleaning the Business Mail Entry Unit (BMEU) and not placing the correct times on her Employee Assignment Worksheet; 4. On June 13, 2019, after declining to sign an incorrect Adjustpay, her supervisor commented "Make his day,"; and 5. On June 25, 2019, she was given an investigative interview and subsequently on July 2, 2019, she was issued a Letter of Warning. After 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Regarding Claim 1, the Agency considered Complainant’s statement that on May 22, 2019, she called in and requested sick leave pursuant to Family and Medical Leave Act (FMLA) for May 23-24, 2019. She explained that S1 should have received an email about her call, but her leave was not entered and she was placed on leave without pay (LWOP). When Complainant inquired about the discrepancy, she was instructed to complete a PS Form 3971; however, S1 refused to accept her completed form on June 4, 2019. Complainant stated that she gave her form to Maintenance Manager of Operations (M1). 2020003367 3 Complainant stated that on June 5, she sent emails to management informing them that she planned to file a grievance about S1’s handling of her request and his harassment and learned on June 6, that her leave had been approved on June 5. Notwithstanding, she filed a grievance on June 7, which was granted at Step 1. S1 stated that Complainant was placed on LWOP because Complainant’s call requesting Injury On Duty (IOD) leave occurred just before Memorial Day and thus it was not immediately processed by Human Resources. When Complainant told them that she was not paid for two days of work despite her leave request, she was informed that an Adjust Pay would need to be done. S1 stated that because Complainant initially requested IOD leave, when she submitted a form for FMLA sick leave to him, he sought assistance from M1. M1 advised Complainant to sign the Adjust Pay but she refused because she wanted to file a grievance since Complainant disagreed with reasons presented for the adjustment and she believed that S1 was harassing her. The Maintenance Manager for Oklahoma District (M2) stated that Complainant’s grievance was resolved at Step 1 because everyone agreed that Complainant should be paid and management understood that this was just an administrative issue. With respect to Claim 2 in which Complainant alleged that her Employee Assignment Worksheet listed 10 routes instead of two, the Agency noted that Complainant felt S1 was responsible for the increase in routes because she asserted that S1 was the only management official authorized to make changes. Complainant also stated that because it usually takes 7 hours to complete two routes, her medical restrictions limited what she could do on 10 routes. The Agency considered S1’s statement that a group leader, and not he, assigned Complainant’s routes on June 11, and that Complainant was typically assigned anywhere from 1 to 20 routes, which could be completed in 5.93 hours. M2 explained that different routes require different amounts of time to complete and Complainant's assignment did not increase her workload or number of hours she needed to work because the work would have taken between 5 and 6 hours. S1 added that Complainant never complained to management about her route assignments. The Agency noted that the record revealed Complainant's Employee Assignment Worksheet for June 10 and 11 indicated 10 routes with estimated times of less than 6 hours. Concerning Claim 3, the Agency noted that Complainant stated that S1 accused her of not cleaning the BMEU (Business Mail Entry Units) which she asserted was not true. She also averred that regarding her assignment worksheet, she corrected an inadvertent error on June 12, but she denied putting in incorrect times. Complainant asserted that she believed S1 was harassing her because she had to face potential discipline for something she had not done. The Agency further noted that S1 stated that he went to the BMEU to talk with Complainant about why she had not entered any time for some of her routes when he noticed trash in the BMEU area. He said he told Complainant about the trash and she asserted that she had cleaned the area and accused him of putting the trash in the area. He said he told her about the time missing from her paperwork and she corrected her time later that day. 2020003367 4 Regarding Claim 4, the Agency noted that Complainant asserted that on June 13, S1 provided her an Adjust Pay Certification for the May 23-24 leave dates, but she refused to sign it because she disagreed with the reason for the adjustment and because she wanted to file a grievance. She said that S1 said to sign it and “make his day” but that the form would be processed whether she signed it or not. Complainant said she felt that S1 harassed her to sign the certification so that it would appear that he had not acted wrongly regarding the pay adjustment. As for Claim 5, the Agency noted that Complainant stated that she informed the Plant Manager of S1’s harassing conduct which led to her being subjected to an investigative interview and issued a Letter of Warning. Complainant explained that when she reported S1’s harassment to the Plant Manager, he said he would alert the Threat Assessment Team and have them do a full review. M2 and S1 said that the Threat Assessment Team arrived to meet with Complainant in her work area and they looked for her for 20 minutes but could not find her. On June 25th, M2 and S1 conducted an investigative interview to determine whether Complainant failed to follow instructions when she was not in her work area. Complainant stated that she was not in the work area because she was either in the bathroom or getting a drink of water and noted that no one used the intercom to page her. On July 2nd, S1 issued a LOW to Complainant for unauthorized absence from the work area and failure to cooperate with an investigation. Complainant filed a grievance and the LOW was rescinded. The Agency found that Complainant had not been subject to retaliation because, although S1 was aware of Complainant’s prior EEO activity, Complainant did not provide, and the investigation did not uncover, any direct or circumstantial evidence that management made any decision or took any action toward her based on any prior EEO activity especially since her EEO activity involving S1 occurred almost seven years before the incidents in the instant complaint. With respect to Complainant’s allegations of discrimination, the Agency found that management provided reasonable, nondiscriminatory reasons for its conduct and that Complainant failed to show that the Agency's explanation was a pretext for discrimination. Lastly, the Agency found that Complainant failed to prove she had been subjected to harassment because the acts to which Complainant objected are matters which occur in the course of daily interactions between a supervisor/manager and his or her employee, which do not come anywhere near the level of pervasiveness and severity necessary to establish a hostile work environment. The Agency also found that Complainant did not show that management was motivated by her protected traits or activity. This appeal followed. 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, statements, and testimony of record, including any timely and relevant submissions of the 2020003367 5 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). After careful consideration of the record, the Commission finds no reversible error. Complainant failed to proffer any evidence that her sex, disability or prior EEO activity were factors in management’s actions. She also failed to show that management’s reasons for its actions were pretextual or that its conduct was severe or pervasive. For example, Complainant objected to having her routes increased from two to 10, arguing that it conflicts with her medical restrictions. Yet, Complainant does not offer any evidence indicating how much longer it took her to complete the routes or even assert that she was unable to complete them. Moreover, we note that if she did not complete the routes, she was not disciplined and if she did complete them and it took more time and impacted her medically, she did not submit evidence of such. Nor does she dispute S1’s assertion that she did not complain to him or management about the additional routes. Similarly, while Complainant may not have been paid for two days on which she requested leave or that she should not have been issued a LOW when she could not be found by the investigative team, she does not present any evidence that her protected traits or EEO activity was the cause. Therefore, we find that Complainant’s claims of discrimination, harassment and retaliation must fail. CONCLUSION The Commission AFFIRMS the Agency’s decision 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). 2020003367 6 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 sole discretion to grant or deny these types of requests. 2020003367 7 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 March 9, 2021 Date