[Redacted], Dayle H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020003152 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dayle H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003152 Agency No. 1C-441-0081-19 DECISION On April 16, 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 April 7, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a PS-06 Mail Processing Clerk at the Agency’s Cleveland Flats Sequencing System Annex facility in Cleveland, Ohio. Complainant’s first-line supervisor was the Supervisor, Distribution Operations (S1). 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. 2020003152 2 Complainant stated that S1 had previously worked as an Acting Manager, Distribution Operations. According to Complainant, she provided a statement to management about S1 leaving mail on the work floor, which resulted in S1 being demoted back to the Supervisor, Distribution Operations position. Complainant averred that she provided the statement to the Plant Manager (S2) and to another supervisor who had since retired (S3). Complainant characterized this statement about the mail left on the floor as protected EEO activity. Complainant alleged that, after S1 found out that she had provided a statement, she harassed Complainant. S1 stated that she did not learn that Complainant had provided a statement to management until she was contacted by the EEO Investigator concerning the instant complaint. S2 stated that she was also unaware that Complainant had engaged in protected EEO activity or provided a statement concerning S1 until she was contacted by the EEO Investigator. Complainant averred that the statement was hand-written and was unable to provide a copy for the record. According to Complainant, on May 6, 2019, a Mail Handler (C1) assaulted her in the parking lot outside the facility. Complainant stated that, earlier in the day, C1 had come to her work area to ask Complainant to confront another coworker. Complainant alleged that, when she declined to confront the coworker, C1 referred to Complainant as a “miserable bitch” and a “loner.” Report of Investigation (ROI) at 63. Complainant averred that C1 followed her to the time clock and that, as Complainant walked through the turnstile door to exit the facility, C1 stuck Complainant’s arm through an opening, poking Complainant in the face, and calling her miserable. According to Complainant, she was briefly stuck in the turnstile because she dropped her badge when C1 was poking her. Complainant stated that C1 was already inside her car by the time Complainant made it out of the facility. Complainant alleged that C1 got out of her car, jumped in front of Complainant, poked in the face, and spit in her face two times. According to Complainant, when C1 spit in her face the second time, Complainant said, “oh hell no,” and held C1 down until another Mail Handler (C2) split them up. ROI at 63. Complainant identified C2 as a friend of C1. Complainant denied hitting C1 and stated that she held her down to protect herself. Complainant averred that, as a result of C1 hitting her and spitting her, she received a tetanus shot and was tested for HIV. S1 was not working on May 6, 2019. Complainant stated that she immediately reported the incident to an on-duty Supervisor, Distribution Operations (S4), who placed her on Emergency Placement. The record contains a memorandum from S4 to Complainant, which states that she was being placed in an off-duty status without pay, effective May 6, 2019, pending an investigation into her alleged involvement in a physical altercation with C1 on May 6, 2019. ROI at 88. The record contains an identical memorandum from S4 to C1, placing her in an off-duty status without pay, effective May 6, 2019, pending an investigation into her alleged involvement in a physical altercation with Complainant. According to Complainant, she was told that she was being placed on Emergency Placement for violating the Agency’s Zero Tolerance Workplace Violence Policy (“Zero Tolerance policy”). 2020003152 3 According to the Zero Tolerance policy, the Agency’s prohibited acts or threats of violence in the workplace, including any act of physical violence and any actual, implied, or veiled threat of violence, whether made seriously or in jest. ROI at 261. A Postal Inspector investigated the May 6, 2019, incident between Complainant and C1. In a May 13, 2019, report, the Postal Inspector concluded that further investigation by the Postal Inspection Service was not warranted and advised management that it could consider appropriate administrative action based on the investigative report. On May 29, 2019, S1 conducted a pre- disciplinary interview (PDI) with Complainant. During the PDI, Complainant stated that, after C1 spit at her, she knew she had to defend herself, then “things went black” and she could not remember what happened next. ROI at 237-41, 244-45. On July 17, 2019, S1 issued Complainant a Notice of Removal for Improper Conduct, effective August 24, 2019. S1 proposed the removal action, and S2 concurred. According to S2, in addition to Complainant’s statements during the PDI and the Postal Inspector’s investigation, there was photographic evidence of scratches, indicating physical contact between Complainant and C1 on May 6, 2019, in violation of the Zero Tolerance policy. The record contains a July 17, 2019, Notice of Removal for Improper Conduct, effective August 24, 2019, that was issued to C1 on July 17, 2019. ROI at 250-51. Complainant alleged that she did not violate the Zero Tolerance policy because she was defending herself. Complainant also averred that the Agency did not previously enforce the Zero Tolerance policy. Complainant noted that C1 was a known bully and troublemaker and that C1 had not been disciplined despite her involvement in previous workplace altercations. According to Complainant, on May 10, 2019, S1 provided a statement to the Department of Labor challenging a workers’ compensation claim filed by C1. In the statement according to Complainant, S1 stated that witnesses had indicated that the altercation on May 6, 2019, did not start until C1 exited her car to fight with Complainant. Complainant alleged that S1’s statement is proof that C1 started the altercation and that Complainant was merely defending herself. On September 20, 2019, Complainant’s removal was reduced to a seven-day, time served suspension through a grievance settlement. On November 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when: 1. On May 6, 2019, C1 verbally and physically assaulted Complainant, and Complainant was placed on Emergency Placement; and 2. On or about July 7, 2019, Complainant was issued a Notice of Removal. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2020003152 4 The instant appeal followed. Neither Complainant nor the Agency submitted a statement or brief regarding the appeal. 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”). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reason for placing Complainant in an off-duty unpaid status pending an investigation into the events of May 6, 2019, was Complainant’s alleged involvement in a physical altercation in the parking lot. Complainant contends that the Agency’s proffered reason was pretextual because C1 initially attacked her and she was defending herself against C1. However, Complainant’s explanation of her involvement in the physical altercation does not establish that the Agency’s legitimate, nondiscriminatory reason for issuing her an Emergency Placement was a pretext for reprisal, and the preponderance of the evidence in the record does not otherwise establish pretext. The Agency’s legitimate, nondiscriminatory reason for issuing Complainant the Notice of Removal was that the Postal Inspector’s investigation and the PDI showed that Complainant violated the Zero Tolerance policy on May 6, 2019, by touching C1 during the altercation. 2020003152 5 Complainant again argues that she did not violate the Zero Tolerance policy because she was defending herself, but the policy does not contain an exception for self-defense. Although Complainant’s removal was subsequently mitigated to a seven-day suspension during the grievance process, we find that the preponderance of the evidence in the record does not establish that the Agency’s legitimate, nondiscriminatory reason for issuing the Notice of Removal was a pretext for discrimination based on reprisal. Complainant also alleged that she was subjected to harassment based on reprisal. To establish a claim of harassment a 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 employer. 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). We find that Complainant has not established by preponderant evidence any connection between the alleged harassment and her protected activity. Assuming for the purposes of this decision that Complainant’s statement about S1 leaving mail on the workroom floor constituted protected EEO activity, both S1 and S2 stated that they were unaware that Complainant had provided such a statement. In addition, Complainant has not established by the preponderance of the evidence in the record that she was subjected any instances of alleged harassment based on this activity. Accordingly, Complainant has not established that she was subjected to harassment based on reprisal. 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 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 2020003152 6 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). 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. 2020003152 7 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 19, 2021 Date