[Redacted], Deidra D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 15, 2022

Appeal No. 2021001253 (E.E.O.C. Feb. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deidra D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001253 Hearing No. 550-2019-00664X Agency No. 4F-956-0054-19 DECISION On December 8, 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 November 18, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate, 05/W, at the Agency’s Royal Oaks Carrier Unit in Sacramento, California. On April 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Hispanic) and sex (female) 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. 2021001253 2 1. from September 2018, through January 2019, Complainant was harassed by various supervisors when they criticized how long it took her to pull down her route, demanded to know her return time, accused her of missing scans, constantly called her while she was on her route, and threatened her by stating, “you know you are on probation”; 2. on October 30, 2018, and other dates, Complainant reported the harassment by supervisors to her manager, but he failed to respond to her allegations; 3. on January 3, 2019, management left documentation containing her private information lying out in the open on the supervisor desk; 4. on January 8, 2019, Complainant was given a 60-Day Evaluation that contained unfounded ratings of Unsatisfactory and she was never provided a 30-Day Evaluation; 5. on or about January 22, 2019, Complainant was terminated from her position as a Rural Carrier Associate during her probationary period. In her affidavit, Complainant provides a lengthy narrative regarding her interactions with several supervisors and coworkers. Complainant asserted that her direct supervisor was S1. The record indicates that there were several other supervisors in the Unit. S1 averred that there are three shifts of supervisors. On October 30, 2018, another supervisor (S2) noticed that Complainant was pulling down mail and said that it was really late to be doing so. Complainant said S2 made her so nervous that the mail slipped and when she tried to catch the mail, she hurt her forearm. S2 later came back asking her to sign a form stating whether she was injured. Complainant said she was okay. Complainant also said that S2 accused her of failing to scan three parcels on her route. S2 does not recall either incident. S2 further said that management does not accuse employees, but rather asks if there was an issue with the scanner. Additionally, on October 30, 2018, Complainant claimed that she was repeatedly called by two other supervisors (S3 and S4), demanding to know when she would be back. Complainant characterized the calls as harassment. S3 later criticized the time Complainant took to complete the route. S3 averred that he asked Complainant where she was only because she was not answering calls. S3 added that Complainant was often late returning from her routes and needed assistance from other carriers even though the mail volume did not justify assistance. 2021001253 3 A Manager, Customer Service (MCS1) affirmed that he received more than one text message from Complainant complaining about S3 and other employees. MCS spoke with S3 but took no other action. Shortly after, MCS stopped working in the Unit. On November 11, 2018, a fifth supervisor (S5) texted Complainant to say that he noticed Complainant was at a particular location for more than 10 minutes. Complainant responded that she was taking a restroom break. On January 3, 2019, Complainant alleged management left documents containing her private information out in the open. Complainant identified the document as a restricted time and attendance information report. Complainant contended that her 60-Day Evaluation contained inaccurate information and said that none of her supervisors had ever criticized her job performance. S2 responded that Complainant “failed to work at a sufficient speed to keep up with the amount of work required by the position.” S2 also said that Complainant failed to meet expectations. S2 noted that Complainant was verbally informed a number of times that her work performance was deficient. The new Manager, Customer Service (MCS2) affirmed that Complainant received unsatisfactory ratings on her 60-Day Evaluation because of her performance. The record contains a note from S1 dated January 25, 2019, in which S1 said that Complainant was struggling to meet district standards and was frequently returning from her routes late. S1 noted “multiple mis-deliveries” and “unacceptable conduct with customers on the street on many different occasions.” On January 22, 2019, Complainant observed S1 and S2 terminate another employee and then learned S2 wanted to meet with her. Believing she was about to be terminated, Complainant refused to speak with S2, turned in her badge, gathered her belongings, and left the building. S2 confirmed that Complainant was terminated because she did not work fast enough. S2 acknowledged terminating the other employee at the same time, and asserted that the other employee, a man, also failed to work fast enough. S2 identified other employees, both men and women, who were terminated for the same reason. MCS2 confirmed that Complainant walked off the job and did not notify management that she was leaving. S1 confirmed that Complainant was not performing up to standards. 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). 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2021001253 4 CONTENTIONS ON APPEAL On appeal, Complainant criticizes the Agency’s investigation and contends it contained numerous misrepresentations. Complainant argues that the Agency’s positions are nonsensical. Complainant asserted that, had a grievance been allowed to proceed, she would have been able to call witnesses. As to her claims, Complainant challenges management’s position that her work was unsatisfactory. Additionally, Complainant accuses her managers of illegal conduct and reiterates her claims. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As an initial matter, Complainant claims on appeal that the investigation was inadequate and unfair. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. We note that Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. 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”). Hostile Work Environment To establish a hostile work environment claim, 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 his statutorily protected class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, 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. 2021001253 5 Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her race or sex. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, regarding Claims (1) and (2), management officials stated that they discussed and addressed Complainant’s work performance deficiencies with her because she was consistently late returning from her route or would need assistance when the mail volume did not justify it. Complainant claimed that she texted her manager to complain about a supervisor being rude to her. MCS confirmed that he addressed the matters Complainant raised in a text message to him with the supervisor in question. As to Claim (3), the record appears to indicate that Complainant is referencing a time and attendance sheet. Management officials denied any knowledge of Complainant’s time and attendance information being left out in the open. One supervisor noted that if there was a report, it was on the supervisor’s desk and a carrier should not have been looking at documents on a supervisor’s desk without permission. They all noted that Complainant never raised the matter with any management official. Complainant has not demonstrated how the time and attendance sheet constitutes confidential information, or how the Agency’s use of the sheet constitutes discrimination based on her race or sex.2 Finally, regarding Claims (4) and (5), the record contains explanations from S1 and S2, along with supporting documentation, that Complainant did not meet expectations because she failed to deliver her route quickly enough and did not appropriately interact with customers on her route. As a result, Complainant was ultimately terminated during her probationary period. The Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory animus. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination. Accordingly, we find that Complainant has not shown that he was subjected to discrimination or a hostile work environment. 2 To the extent that Complainant is alleging that the Agency violated the Privacy Act, we note that such claims are beyond the Commission’s jurisdiction 2021001253 6 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. 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. 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). 2021001253 7 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 February 15, 2022 Date