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

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2021000038 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000038 Agency No. 1G-321-0015-20 DECISION On October 1, 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 September 2, 2020, final decision (FAD) 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 During the relevant time, Complainant worked as a Clerk at the Agency’s Processing and Distribution Center in Augusta, Georgia. On March 20, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (Mixed Race), sex (female), color (Light Tan), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On May 1, 2019, she was placed on a “deems desired list” without having been informed first; 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. 2021000038 2 2. On November 21, 2019, she was issued a seven-day suspension for unauthorized absence/absent without leave (AWOL); 3. On November 24, 2019, after reporting to work, she was informed that her begin tour had changed from 16:00 hours to 18:00 hours; 4. On November 25, 2019, after reporting to work, she was subjected to a pre- disciplinary interview for failing to report to work; 5. On a date to be specified, she was given a safety observation for headphone usage and written up; 6. On January 2, 2020, she was referred to as a “heifer;” 7. On January 3, 2020, she was yelled at, singled out in that she was the only person being given instructions, and constantly paged over the intercom; 8. On or about January 6, 2020, she was subjected to a pre-disciplinary interview regarding her having called the police on January 3, 2020; 9. On January 7, 2020, she was issued a notice of 14-Day Suspension for Failure to Follow Instructions/Unacceptable Conduct; 10. On February 6, 2020, her request to have a threat assessment conducted went unanswered; 11. On or about February 7, 2020, she was placed on emergency placement; 12. On February 27, 2020, she was called slow and faulted for not having her timecard in the slot; 13. Beginning on or about February 27, 2020, she was made to take her lunch two hours into her shift; and 14. On March 16, 2020, she was issued a Notice of Disciplinary Action-Notice of Removal for Unacceptable Conduct/Failure to Follow Instructions. Alleged Discriminatory Harassment Concerning Time and Attendance Complainant stated that she was absent from work April 25, 2019, through April 27, 2019. When she returned to work, Complainant said that Manager asked if she had medical documentation in support of her absence. Complainant alleged that Manager informed Complainant she was on the “deems desired” list. Record of Investigation (ROI) at 157. 2021000038 3 Manager Distribution Operations (MDO) stated that she had no knowledge of Complainant being placed on a “deems desired” list and had no knowledge of who was involved in any such action. ROI at 251. Acting Manager Distribution Operations (AMDO) also contradicted Complainant; she stated that she did not recall placing Complainant on the “deems desired” list. ROI at 273. Complainant expressed that on November 24, 2019, and February 27, 2020, she experienced schedule-related discrimination and harassment, and sequelae thereof. Complainant asserted that she was scheduled to work on November 24, 2019, her off day, and that her start time was changed from 16:00 to 18:00 without the Agency providing her notice. ROI at 127. AMDO countered that Complainant’s normal reporting time was 18:00 and that Complainant reported at 16:00 without being requested or authorized to do so. ROI at 194. Complainant alleged that Operation Support Specialist (OSS) issued her a pre-disciplinary interview on November 25, 2019, for this change on reporting time. ROI at 161. OSS and Maintenance Manager both denied that they performed a pre-disciplinary interview on that date. ROI at 196, 317. On February 27, 2020, Complainant alleged that she was forced to take her lunch at 20:00, two hours into her shift. ROI at 172. Complainant said that she asked Supervisor why she was being forced to take lunch two hours into her shift and Supervisor allegedly told Complainant, “[You] knew what [you] had done.” ROI at 172. Complainant assumed that Supervisor was referencing that Complainant filed a 1767 form (a safety form) in which she reported the Agency for requiring her to exceed six hours of her shift prior to being allowed to take her lunch break (she went to lunch one evening six and one-half hours into her shift). ROI at 172. AMDO confirmed that Complainant filed a form 1767 for being required, one evening, to work longer than six hours; AMDO stated that assigning Complainant to take a lunch break at 20:00 was to avoid creating an unsafe work condition pursuant to her 1767. ROI at 215. The 1767 form in question states that from February 5, 2020, forward, Complainant would take lunch at 21:00 (one is written over a zero) so as not to create an unsafe work condition or practice. ROI at 244. Alleged Discriminatory Harassment Concerning Disciplinary Actions On October 24, 2019, OSS stated that she saw Complainant pushing an object across the floor while wearing headphones. ROI at 199. OSS confirmed that she explained to Complainant that Agency provided safety talks on earphones and that they are not allowed on the workroom floor. ROI at 199. Complainant stated that OSS approached two of her coworkers and she saw her coworkers remove their earphones. ROI at 163. Complainant stated that she was informed that she was being written up for having her headphones in. ROI at 163. She said that her other two coworkers said they were allowed to take out their headphones. ROI at 163. OSS stated Complainant was not written up but was spoken to. ROI at 198. There is no documentary evidence that Complainant was, in fact, written up. On November 21, 2019, Complainant was issued a notice of seven-day suspension for unauthorized absence/AWOL. In the notice, Complainant was charged with seven instances and failure to maintain her work schedule. ROI at 124-26. 2021000038 4 Maintenance Manager affirmed that Complainant was issued the suspension because Complainant had seven instances of AWOL and failed to maintain a regular work schedule on three occasions. ROI at 319. Complainant alleged that Maintenance Manager erred in giving her this notice because the notice concerned instances under adjudication and times when she was not AWOL because she called in. ROI at 158. On January 7, 2020, Complainant was issued a 14-day suspension. OSS stated that Complainant was issued the 14-day suspension for failure to follow instruction and unacceptable conduct. ROI at 207. OSS stated that Complainant ran the wrong program and that she became loud, argumentative, and confrontational. She also said that Complainant reported to work outside of regular hours without permission or authorization. ROI at 207. Complainant stated that she was performing the mail programs that she was instructed to do, that the wrong instructions were not her fault, and she was attempting to get clarification by utilizing the intercom. Complainant stated that, with regard to the start time, she had had a start time of 16:00 since becoming a regular employee and nobody told her that her off day start time was 18:00. ROI at 167. Complainant alleged that OSS treated her differently from the beginning, requiring that she do things that nobody else had to do. ROI at 167. Complainant said that she exercised her rights by filing grievances against OSS. ROI at 167. Complainant stated that another coworker continued to report to work at 16:00, despite them having the same schedule. She also stated that she was required to work holidays despite her juniors having it off. ROI at 167. OSS contradicted Complainant, stating that, at that time, Complainant was junior to other clerks; that during the 90-day probationary period, an employee may not take leave. ROI at 226. Complainant alleged that on January 2, 2020, Coworker 1 (CW1) told her that Plant Manager called Complainant a “heifer.” ROI at 164. CW1 affirmed that she heard Plant Manager state, under her breath, “I can’t stand that heifer,” and CW1 knew Plant Manager was referring to Complainant because Complainant had just been at Plant Manager’s desk. ROI at 381. Plant Manager denied calling Complainant a heifer on January 2, 2020. ROI at 286. Complainant said that the next day, Coworker 2 (CW2) talked to her as she passed by. Complainant stated that Plant Manager began yelling at her to stop talking now, Complainant was needed on the machines. ROI at 165. Complainant alleged that Plant Manager yelled at her to stop her machine, that she was slow, and told her to load four trays of mail on the ledge. Complainant said that Plant Manager did not yell at any of her coworkers in either incident. ROI at 165. Complainant charged that Plant Manager paged Complainant to Plant Manager’s desk and yelled at Complainant, telling her to report to Plant Manager’s desk after break. Complainant stated she didn’t say anything, but stepped back, and that Plant Manager said Complainant could call the Union, that Plant Manager didn’t care. Complainant said she feared for her safety. ROI at 166. Plant Manager stated that, on the evening in question, she observed Complainant and CW2 talking and instructed them both to go back to work. She said that she told Complainant to stop her machine because she continued to let it run out of mail instead of keeping the ledge fully loaded, which Complainant was instructed to do. ROI at 311. Coworker 3 (CW3) said he saw Plant Manager “picking on” Complainant. 2021000038 5 ROI at 372. CW3 stated that Plant Manager did not exclusively “pick on” Complainant, however; rather, Plant Manager treated other employees harshly as well. That evening, Complainant contacted the local police department from work. Complainant told the officer that she did not feel safe at work due to Plant Manager, because Plant Manager gets close during their work conversations. Complainant also stated that she thought Plant Manager singled her out because of a complaint she had made a Human Resources (HR) complaint. Plant Manager told the officer that she’d had several conversations with Complainant regarding her performance and her failure to follow instructions. ROI at 353. On January 6, 2020, an investigative interview was conducted. ROI at 354-57. In the course of the investigative interview, Complainant was notified that emergency telephone calls were reserved for management and that non-emergency calls were to be made to Agency Inspection Service. ROI at 356. Maintenance Manager asserted that the interview took place because Complainant refused to follow instructions that she was given by Plant Manager. ROI at 354. Complainant said that Maintenance Manager was unprofessional during the interview, that he laughed and smirked. ROI at 166. Complainant stated that on February 6, 2020, she, again, felt unsafe at work. She said that there was a dispute between herself and OSS over timecard usage between operation assignments and that OSS was being “quarrelsome and ignorant,” being aggressive and not “getting her hand out of [Complainant’s] face.” ROI at 169. Complainant stated that her watch alerted her that her heart rate was elevated, and she tried to contact her inspector to report the inappropriate behavior. Complainant averred that she was unable to contact her inspector, so she asked Plant Manager to contact the inspector and provide a threat assessment. Complainant stated that Plant Manager refused to do either and told her to go back to her machine. Complainant said that she then contacted local authorities. ROI at 169. Complainant alleged that Plant Manager told her to clock out and go home. Complainant stated that she requested a notification of absence form to fill out due to safety, but Plant Manager refused and told Complainant she would be on Emergency Placement. ROI at 170. Plant Manager’s recount conflicted with Complainant’s report. Plant Manager stated that she witnessed Complainant being combative to OSS after OSS gave Complainant a series of instructions that Complainant did not follow. ROI at 293. Plant Manager asserted that when Complainant requested a risk assessment, Plant Manager denied the request, telling Complainant that Plant Manager witnessed Complainant’s behavior toward OSS and Plant Manager did not see OSS as a threat. ROI at 293. Plant Manager asserted that OSS later informed her that Complainant was speaking with authorities. Plant Manager relayed that Complainant was notified in a prior interview that Agency policy requires contacting Agency Inspection Service for workplace incidents. Because she continuously did not follow company policy, she was placed on Emergency Placement. ROI at 295. Complainant asserted that on February 27, 2020, OSS and Supervisor stated that she was too slow, and she should have had her allotted work performed by that time. Complainant said that she explained her help had been taken, and that it was a two-person job. 2021000038 6 Complainant also alleged that Supervisor took notice Complainant’s timecard was not in the slot and that once Complainant explained, Supervisor asked why it was bent. ROI 171. Supervisor and OSS contradicted Complainant, stating that they neither called Complainant slow nor asked about her timecard. ROI at 214, 367. Maintenance Manager stated that, on multiple occasions, Complainant failed to follow instructions from Plant Manager and OSS regarding her work expectations on February 5, 2020, and February 6, 2020, and became insubordinate. ROI at 333. Maintenance Manager also offered that Complainant had prior discipline. ROI at 334. As such, Maintenance Manager provided, Complainant was given a Notice of Removal for Unacceptable Conduct and Failure to Follow Instructions on March 16, 2020. ROI at 333. Complainant confirmed that she had prior discipline. ROI at 175. She stated, however, that OSS was not able to provide testimony as to whether she was working, because OSS was not in the same area that day. Complainant also said that OSS looked for things wrong with her work since Complainant filed grievances against Plant Manager. ROI at 173, 175. 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). 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. The instant appeal followed. Neither Complainant nor the Agency provided a brief in support of their respective positions. ANALYSIS AND FINDINGS 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”). 2021000038 7 Discriminatory Harassment In the absence of direct evidence, Complainant initially must establish, by a preponderance of the evidence, at least a prima facie case of discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep’t of Community Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In order to establish a case of harassment/hostile work environment, Complainant must prove: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class status; (3) the harassment complained of was based on her 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. See Davis v. Dep’t of the Army, EEOC Appeal Nos. 01A24469, 01A20558 (Nov. 14, 2003), 29 C.F.R. § 1604.11. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently patterned or pervasive. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Wibstad v. U.S. Postal Service, EEOC Appeal No 019726699. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). To warrant a hearing on a claim of hostile work environment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether, because of their protected class(es), they were subjected to conduct so severe or pervasive that a reasonable person in their position would have considered it hostile or abusive. See 29 C.F.R. § 1614.109(g) (2017); Harris, 510 U.S. at 22. The alleged harassing conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. EEOC, Enforcement Guidance on Harris v. Forklift Sys., Inc. (Mar. 8, 1994). “Only if Complainant satisfies his burden of proof with respect to both of these elements, [discriminatory] motive and hostility, will the question of Agency liability [for harassment] present itself.” Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120132783 (Sept. 11, 2015). For a retaliation case, Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and, (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2021000038 8 “The Commission has held that this causal connection may be shown by evidence that the adverse action followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred.” See Lee v. Dep’t of Interior, EEOC Appeal No. 01A62376 (Aug. 25, 2006) (citing Simens v. Dep’t of Just., EEOC Request No. 05950113 (March 28, 1996)). “The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close’ [in time]” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (citing to O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 [C.A.10 2001]; Richmond v. ONEOK, Inc., 120 F.3d 205, 209 [C.A.10 1997] [3-month period insufficient]; Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 [C.A.7 1992] [4-month period insufficient]). See also Julian v. U.S. Postal Serv., EEOC Appeal No. 01A54971 (Jan. 6, 2006) (citing to Breeden). A claim of harassment on the basis of reprisal can be actionable “even if it is not severe or pervasive enough to alter the terms and conditions of employment. If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.” EEOC, Enforcement Guidance on Retaliation and Related Issues § II-B-3 (Aug. 25, 2016). EEOC, Enforcement Guidance on Retaliation and Related Issues § II-B-3 (Aug. 25, 2016). Nonetheless, Complainant must establish a nexus between the allegedly discriminatory action(s) and having engaged in protected activity for a claim to be actionable. Furthermore, where Complainant fails to first establish a prima facie case of reprisal, the standard by which a hostile work environment case is judged remains the “severe or pervasive” standard. Where Complainant has “adduced no evidence that [s]he was harassed because of [her] protected class characteristics,” Complainant’s claims of harassment must fail. Davis, EEOC Appeal No 01A22812, 01A24469, 01A30558. While the scope of retaliation claims may be broader than claims of discrete acts of discrimination, the challenged activity must still rise to the level of materiality and be sufficiently serious that it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68 (2006); see also Flagg v. Soc. Sec. Admin., EEOC Appeal No. 0120073631, (July 7, 2010). Materiality is key because “it is important to separate significant from trivial harms.” Burlington N., 548 U.S. at 68. In this regard, the Supreme Court has held that the legal standards for assessing discrimination claims must ensure that the EEO laws do not become a “‘general civility code’ [and must be sufficiently rigorous to] … filter out complaints attacking ‘the ordinary tribulations of the workplace.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). If Complainant establishes a prima facie case of discrimination and/or retaliation, the burden shifts to the Agency to articulate a legitimate, nondiscriminatory reason for the challenged actions. Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. If the Agency does so, the prima facie inference drops from the case. Hicks, 509 U.S. at 507, 510-11. 2021000038 9 Complainant then has to prove by a preponderance of the evidence that the proffered explanation is a pretext for unlawful discrimination. Burdine, 450 U.S. at 253; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Hicks, 509 U.S. at 511; McDonnell-Douglas, 411 U.S. at 804. Complainant always retains the ultimate burden of persuading the trier of fact that the agency unlawfully discriminated against her. Hicks, 509 U.S. at 511; U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). Bare assertions are insufficient to prove pretext. See Erby v. U.S. Postal Serv., EEOC Appeal No. 0120064377 (Feb. 12, 2008) (concluding that appellant’s bare assertions are insufficient to overcome the Agency’s legitimate, nondiscriminatory reasons). “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Too, a complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urb. Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). With regard to claims 1, 4, 6, and 12, Complainant has not established that the events in question occurred at all, let alone as a result of discriminatory animus. In each of the relevant claims, Complainant asserts that the events in question occurred, but the appropriate Agency official denies any such claims. Complainant has not provided any evidence that would lead the Commission to conclude, by a preponderance of the evidence, that the alleged events occurred. Complainant bears the burden to prove by preponderant evidence that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, with regard to claims 1, 4, 6, and 12, Complainant failed to meet the elements of discriminatory harassment. With regard to claim 13, Complainant fails to show a nexus between the mandatory lunch time and discriminatory animus. AMDO asserted that Complainant was directed to take her lunch at 20:00 to avoid creating an unsafe work environment and comply with Complainant’s 1767. Complainant’s own resolved 1767 stated Complainant should take lunch at 21:00, with the one written over a zero. It is unclear when this change in writing occurred. As evidence of pretext, Complainant stated that, when asked about her lunch time, Supervisor said she knew what she had done. Complainant assumed that “what she had done” was fill out the 1767 safety form. Assuming, without so finding, that Supervisor made such a statement and that it was for the reason stated, the asserted reason is not related to a protected class for EEO purposes. Complainant has not established that this was due to her race, color, sex, or prior EEO activity. 2021000038 10 Form 1767 reports unsafe practices, and Commission defines protected activity as (1) opposing a practice made unlawful by one of the employment discrimination statutes; or (2) filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statue. EEOC Compliance Manual on Retaliation, No. 915.004 at II.A. (Aug. 25, 2016). Complainant, similarly, does not show a nexus between the Agency’s actions regarding claims 3 and 5 and any protected class. With regard to claim 3, the Agency asserted that Complainant’s scheduled start time was 18:00, not 16:00, and that she was not requested to start before that time. Concerning claim 5, OSS stated that Complainant knew that wearing earbuds was not allowed on the warehouse floor, so she informed her to take them out. Two other co-workers were also instructed to remove their earbuds that same evening, which Complainant conceded. As such, Complainant has afforded no evidence that she was treated any differently than any other employee. In none of the aforementioned claims does Complainant provide evidence that the actions were related to discriminatory animus and not merely adherence to Agency policy. With regard to claims 2, 7-11, and 14, Complainant fails to establish that these actions were discriminatory in nature as opposed to management’s legitimate, non-discriminatory response to her work conduct. With regard to claim 2, Maintenance Manager asserted that Complainant was issued the proposed seven-day suspension because she had a record of seven instances of AWOL and failed to maintain a regular work schedule on three occasions. The Commission now turns to Complainant for evidence that the Agency’s legitimate, non-discriminatory reason is a pretext to discrimination. Complainant alleged that Maintenance Manager erred in giving her this notice because the notice concerned instances under adjudication and times when she was not AWOL because she notified the Agency of her pending absence. Both of these assertions fail as pretext.2 While the Commission notes that Complainant finds the Agency’s actions to be in error, Complainant has not provided sufficient evidence that this was retaliatory, as opposed to merely poor management or mistake. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus); Bodalia v. Dept. of Veterans Affs., EEOC Appeal No. 01955275 (Aug. 27, 1997) (affirming that poor management by an Agency is not, in and of itself, evidence of discrimination). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Similarly, in claims 9, 10, 11, and 14, the Agency argues that its actions were due to Complainant’s failure to follow Agency policy, instructions, and her own workplace conduct toward management officials. 2 To the extent that Complainant argues that this error was due to a breach of the Collective Bargaining Agreement between the Agency and the Union, this is not within the jurisdiction of the Commission and it will not be addressed herein. 2021000038 11 Complainant has not proven that the Agency acted in a discriminatory manner regarding these claims, even if she is correct that they acted in error in one, or all, of those occasions.3 Claims 7 and 8 indicate that Complainant’s work environment may be difficult, at times, but she fails to demonstrate a nexus to any protected class. Regarding clam 8, Maintenance Manager asserted that the pre-disciplinary interview was conducted because Complainant refused to follow instructions given to her by Plant Manager. The interview form indicated affirmed that the interview was Complainant’s opportunity to provide her understanding of events. Complainant said, presumably as evidence of pretext, that Maintenance Manager was unprofessional during the interview, that he laughed and smirked. Pretext inquiry, however, is not concerned with bad judgment, impeccability, dislike, or a mistake, but whether the real reason is discrimination. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). As to claim 7, the evidence suggests that Plant Manager yelled at Complainant while at work. CW3 confirmed that he saw Plant Manager “picking on” Complainant. CW3 stated, however, that Plant Manager did not exclusively “pick on” Complainant, but Plant Manager did this to other employees as well. As such, the evidence does not demonstrate that Plant Manager’s behavior was due to Complainant’s protected class or prior protected EEO activity. EEO statutes do not guarantee a complainant a right to work in a pleasant or stress-free environment, but merely one that is free from discrimination. See Burlington N., 548 U.S. at 68. Complainant’s allegations individually fail to establish discrimination due to the Agency’s well documented legitimate and nondiscriminatory reasons. Further, when considering the evidence as a whole, Complainant has not established a nexus between any Agency action and her protected classes. Finally, Complainant fails to demonstrate how these incidents, for which there are legitimate, nondiscriminatory reasons, either collectively rise to level harassment under the law. The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Burdine, 450 U.S. at 259. Ultimately, an employer has broad discretion to set policies and carry out personnel decisions. Id. Ultimately, a Complainant must prove, by a preponderance of the evidence, that the agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Burdine, 450 U.S. at 253; see Reeves, 530 U.S. at 143; Hicks, 509 U.S. at 511; McDonnell Douglas, 411 U.S. at 804. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro, EEOC Appeal No. 01A50250 (alterations in original) (quoting Morgan, 108 F.3d at 1323). 3 To the extent that Complainant argues that the Agency erred in failing to follow the Collective Bargaining Agreement, such a claim is outside of the jurisdiction of the Commission and it will not be addressed in this decision. 2021000038 12 A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry, EEOC Appeal No. 01A54957. The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968, 2019 WL 4945106, at 6 (Sept. 24, 2019). Complainant has afforded no such persuasive evidence here. 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 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 2021000038 13 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. 2021000038 14 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, Director Office of Federal Operations April 5, 2022 Date