[Redacted], Corie E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2021000641 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021000641 Hearing No. 480-2020-00465X Agency No. 1F-927-0068-19 DECISION On October 23, 2020, 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 October 5, 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 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 an FSS Clerk, Level 7, at the Agency’s Anaheim Plant & Distribution Center in Anaheim, California. On October 4, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to discriminatory harassment on the bases of race (Asian), national origin (Filipino/Chinese), sex (female), religion (Evangelical Christian), and age (61) when: 1. Since April 26, 2019, and ongoing. Complainant's supervisor has called her names; 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. 2021000641 2 2. Since April 26, 2019, and ongoing, Complainant's restroom breaks have been delayed and her lunch breaks have been interrupted; 3. Since April 26, 2019, and ongoing. Complainant's supervisor has subjected her to bullying and intimidation; 4. On dates to be specified, Complainant has been threatened to be walked out and/or fired; and 5. On June 29, 2019, Complainant was displaced from her bid job. The Agency accepted the foregoing claims and then conducted an investigation into the matter. Claim 1 Complainant asserts that on April 26, 2019, she was working at Machine #2 when, at approximately 8:30 pm, her supervisor (“Supervisor”) prematurely inducted the next run for Machine #1, causing it to go down for almost two hours. At 10:30 PM, Complainant and two of her coworkers took their regularly scheduled lunch break. Around 11:05 pm, Supervisor called for a short meeting to talk about breaks. Supervisor asked Complainant and her coworkers why they did not hold their lunch breaks until relievers arrived. They responded that policy is that they take their breaks at regularly scheduled times. Complainant asserts Supervisor then called her a “smart ass”. Complainant said she felt embarrassed and humiliated by this and she twice asked Supervisor why she called Complainant that name, but Supervisor did not answer. She indicated she did not report this incident to the Tour 1 MDO because that it who told Supervisor to keep an eye on Complainant. Complainant believes her race and religion are factors in Supervisor’s treatment of her because she and Supervisor are different races. She believes her sex is a factor because she did not call Complainant’s male employees “smart ass.” She believes her national origin is a factor because Supervisor once told her “you guys don’t speak good English.” She believes her age is a factor because she is feeling bullied into early retirement. Supervisor denies calling Complainant a “smart ass” or other names. She asserts that Complainant expressed to Supervisor that Complainant though Supervisor called Complainant a “rumor monger” when Supervisor stated she did not want to hear any “hear-say”. She contends that Complainant wanted her to approve time off during a holiday weekend and that would have violated the contract. She stated Complainant had no reaction until June 6, 2019. A coworker of Complainant’s testified that during an April 26, 2019 safety talk, Complainant asked questions and Supervisor replied “are you the smart-ass”. A different coworker wrote a statement saying that during an April 26, 2019 service talk, Supervisor twice called Complainant a “smart ass”. 2021000641 3 Claim 2 Complainant identified three events as being part of this claim. First, Complainant states that on June 1, 2019, she was having her lunch break at 11:00 pm, when Supervisor started asking her what time her lunch was, where she was before lunch, and what time Complainant was coming back. Complainant testified she told Supervisor she started lunch at 10:30 pm and she had 5 more minutes to clock back in because of the 5-minute wash up. She told Supervisor that prior to lunch she was at 050 Belt Operation. At 1:56 am on June 2, 2019, Supervisor approached Complainant and asked why Complainant was not following the schedule for May 31, 2019 (Friday). Complainant testified that Supervisor was trying to reprimand her for something she was unaware of, so she answered Supervisor that there was no schedule and therefore she went to Machine #1 as usual. Complainant testified that after she clocked out at 2:00 am, she saw a coworker and asked him if he had seen a schedule posted for May 31, 2019. He said no and then approached Supervisor to tell her there was no schedule. Supervisor insisted there was, but when asked, she admitted it was on her clipboard and told Complainant and her coworker they just liked to argue. Second, on June 13-14, 2019, Supervisor called for a service talk. She discussed Dignity and Respect, as well as heat stroke, and emphasized that employees should drink a lot of water even if it meant more restroom breaks. She also advised Complainant and the other employees not to file a complaint about something that happened two months earlier and she added that grievances and EEO complaints are no ways to make money or avoid work. Complainant then asked Supervisor about ongoing bullying and Supervisor did not respond. At 1:38 am, Complainant made her way to the restroom and Supervisor commented to another employee that Complainant did not know how to listen regarding holding her restroom visit. Third, Complainant stated that on June 14, 2019 at 10:20 pm, she was casing hand rejects, Supervisor came to her and told her she did not know how to listen. Complainant states she told Supervisor she needed to use the restroom because she could not hold it any longer. Supervisor then questioned why Complainant did not ask first. Complainant then questioned Supervisor whether she needed to ask permission every time. She contends Supervisor did not answer and walked away. Complainant asserts she followed policy, although she notes there is no policy about restroom breaks. Supervisor denied that Complainant’s restroom breaks have been delayed and that her lunch breaks were interrupted. Supervisor testified that Complainant tried to take an extended break of 35 minutes instead of 15 minutes. She stated Complainant attempted to leave early for break and became upset when Supervisor stopped her. She said that employees are entitled to bathroom breaks as needed and she does not require permission. Supervisor denied that Complainant’s race, religion, sex, national origin, or age were a factor. Claim 3 2021000641 4 Complainant identified several instances of alleged bullying and harassment. Complainant testified that on June 23, 2019 at 1:30 am, Supervisor came to her in the break area to ask what time Complainant took her break. Complainant told her she took break at 1:18 am. She said that Supervisor then asked her again what time she took break and she informed Supervisor she still had 3 minutes left on her break. Supervisor then told her to g to 130 Belt after break. Complainant asked Supervisor why she was always interrupting Complainant during her breaks to give her instructions and such. Supervisor walked away. Second, on August 17, 2019, another employee told Complainant that she had not yet taken her break and Complainant advised her to tell Supervisor. Supervisor then instructed Complainant to take her lunch break first at 10:30 pm and to be back at 11:00 pm, then the other employee could take her break. Complainant took her 30-minute break plus 5-minute wash up. When she was clocking back in, Supervisor told Complainant that she had told Complainant to be back by 11:00 pm. Complainant says she ignored Supervisor. Supervisor denied any instances of bullying and intimidation. Claim 4 Complainant testified that on July 4, 2019, at 8:28 pm, she was hauling mail to the FSS area. Supervisor arrived at the same time and asked Complainant why she was there. She said that before she could answer, Supervisor told her that the next time Complainant went in there without Supervisor calling for her, Supervisor would walk Complainant out and Complainant would be fired. Supervisor started to walk away but then turned around and told Complainant to stay because she would run the FSS machine in a minute. Complainant states she was shaking and asked Supervisor, “Why are you asking me why I’m here? This is my work area. I’m an FSS Clerk and run this machine and for what reasons I’m getting fired.” She says Supervisor walked away with no response. Supervisor denied this incident occurred. Claim 5 Complainant asserts that she and another employee (“E”) were displaced from their bid jobs. Complainant testified that on June 29, 2019 between 10:00 pm and 10:30 pm, Supervisor started running Machine #1 and Machine #2. She put employees A, B, C, and D on at the same time. However, both machines are supposed to be run by seniority led by Complainant, E, C, and D. Complainant states that she and E were there but Supervisor knowingly displaced them and that FSS is not even B’s bid job. Complainant further testified that around 2:00 am when it was almost time to go home, she saw Supervisor and C giggling and giving each other high fives about having displaced Complainant and E. She states Supervisor did not give her a reason for the displacement and asserts Supervisor said she could put anyone on FSS machines. Complainant notes E filed a grievance about this matter. 2021000641 5 Supervisor testified she was not aware Complainant was at work. She states she asked another manager and he sent other FSS employees. Supervisor denied that Complainant’s race, religion, sex, national origin, or age were a factor. Based on the evidence developed during the investigation of the complaint, 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. Complainant filed the instant appeal. Neither Complainant nor the Agency filed any brief on appeal. 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 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 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, 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). To establish a prima facie case of disparate treatment on the bases of race, religion, national origin, and/or sex, Complainant must show that: (1) he is a member of a protected class, (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment, and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. 2021000641 6 McCreary v. Dep't of Def., EEOC Appeal No. 0120070257 (April 14, 2008), Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998), Trejo v. Soc. Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009). To be considered “similarly situated,” all relevant aspects of the comparative employee’s work situation must be identical or nearly identical, to that of Complainant, including, but not limited to reporting to the same supervisor, performing the same job function, and working the same schedule. See Cantu v. Dep't of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006); Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) req. for recon. denied, EEOC Request No. 05A20020 (Dec. 28, 2002). To establish a prima facie case of age discrimination, Complainant must show that he was over forty years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e. he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). Complainant has established that she belongs to protected classes on the bases of her race, religion, national origin, sex, and age. However, as to Claims 1, 3, and 4, she has failed to identify an adverse employment action that occurred. Even assuming arguendo that Complainant was subjected to an adverse employment action, she has failed to establish that she was treated differently than similarly situated employees or that there is some evidentiary link between her membership in the protected classes and the actions that occurred. Complainant identified two comparators, a Hispanic male of unknown religion and national origin who she believed to be 45-50, and an Asian Filipina Catholic woman aged 52. These employees are also full-time mail processing clerks on Complainant’s shift who report to Supervisor. While Complainant has asserted that the comparators were allowed to take breaks and she was not, she has not provided any corroborating evidence of this. Supervisor stated that the first comparator’s break was held because he was going to work on the MCR report and it benefitted the operation to send him later. She stated that different job responsibilities require different breaks. Complainant asserts the second comparator was allowed to take longer breaks, but again has not provided evidence that this occurred. Supervisor testified she did not believe the second comparator was treated any differently than Complainant. We note that the second comparator is also the same sex, race, and national origin as Complainant. We find Complainant has not shown these comparators were treated differently than she was. When viewing the evidence as a whole, Complainant has failed to provide any evidence of discriminatory animus on the part of Supervisor. Instead the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. In fact, Complainant even admits that the second comparator and Supervisor are friends and that there is a rumor the second comparator is in a relationship with another manager. While this may show favoritism, it does not show discrimination on the basis of race, sex, religion, national origin, or age. 2021000641 7 The Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep’t. of Air Force, EEOC Appeal No. 0120120121 (April 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (October 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”); Sierra- Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes). Discriminatory Harassment/Hostile Work Environment Complainant has alleged the Agency subjected her to harassment, noting several alleged instances. To establish a claim of a hostile work 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 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, religion, sex, national origin, or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant's allegations can generally be described as relating to disagreements over how work should be done, trivial slights, personality conflicts, and/or petty annoyances between Complainant and her supervisors and/or co-workers. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (the record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). 2021000641 8 Additionally, as noted above, Complainant has alleged that one employee is treated more favorably, that the employee is friends with Supervisor and possibly in a relationship with a member of management, but this is not a violation of EEO statues and regulations. Here, although Complainant has alleged the Agency acted discriminately, the record does not establish that the Agency’s actions were related to her race, religion, sex, national origin, or age. Thus, her allegations are insufficient to establish a claim of discriminatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 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 2021000641 9 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. 2021000641 10 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 April 13, 2022 Date