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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003764 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dorothy M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003764 Agency No. 1G-321-0013-19 DECISION On June 13, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 14, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency’s Processing and Distribution in Augusta, Georgia. At the time, she held a Postal Support Employee (PSE) position, a one-year renewable term, rather than full-time career, position. On March 15, 2019, Complainant filed a formal complaint, which she later amended, alleging that she was subjected to discrimination harassment based on race (Black/White), color (light skinned complexion), sex (female) and in reprisal for prior EEO activity 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. 2020003764 2 1. On July 26-27, 2018, August 3, 2018; and other dates, she has been spoken to in a loud tone and threatening manner. 2. On July 26-27, 2018, and other dates, she has not been permitted to take her breaks. 3. On or about January 16, 2019, her employment was terminated. 4. Her work hours were reduced. 5. She was observed in close proximity and/or filmed while performing her duties. 6. She was sent home and told not to return to work until she was called, and yet, on May 15, 2019, the Plant Manager sent her an Absence from Duty letter. 7. Management converted only two employees to regular full-time status in order to prevent her from being converted as the next employee on the seniority list. 8. On June 19, 2019, and other dates, she was harassed by her co-worker when he spoke to other employees about her including asking about her home and personal life, and management failed to take appropriate action. 9. On July 12, 2019, and other possible dates, she was charged Leave Without Pay (“LWOP”) despite reporting to work as scheduled. 10. On March 4, 2019, when she tried to hand a note to the Plant Manager, the Plant Manager yelled at her, tried to shove the note into her apron, and nearly knocked her over in the process. 11. On September 3, 2019, and other possible dates, the Plant Manager refused to allow her to work her bid job. 12. On June 18, 2019, the Plant Manager approached Complainant and yelled at her that she had told Complainant to go lunch, then she stated that Complainant could clock out and go home; and then the Plant Manager instructed Complainant to go to lunch and told her the specific restroom to use to wash up. 13. On June 25, 2019, management began enforcing certain policies only her after she filed grievances. 14. On October 24, 2019, unlike other employees, she was not forewarned by management that they would be conducting Observations of Work Practices. Following an investigation, Complainant neither requested a hearing before an Administrative Judge nor a decision by the Agency. 2020003764 3 Therefore, on May 14, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 2, Complainant alleged that on July 26-27, 2018, and other dates, she has not been permitted to take her breaks. However, PM stated that she was not aware of Complainant not taking a break at any time. She stated that when she took over the daily management of Tour 2 during the last two weeks of October 2018, she made it a point to give all employees a morning break 2 to 3 hours after they began work, a lunch break 4 to 5 hours from their beginning work and an evening break usually 1 1/2 hour prior to their scheduled end work. 2020003764 4 Regarding claim 3, Complainant alleged that on or about January 16, 2019, her employment was terminated. PM asserted, however, that Complainant was not terminated. PM stated after several instances of insubordination and failure to follow instructions, she directed Complainant to clock out and told her she would be called when she was scheduled to return to work. PM stated, however, Complainant refused to leave the building. As a result, PM had to have Complainant escorted from the premises. The record confirms that Complainant’s employment with the Agency continued after January 2019 and many of the allegations in her EEO complaint concern workplace incidents that occurred after that date. Regarding claim 4, Complainant claimed that her work hours have been reduced. Management witnesses stated that PM asked that they were attentive to employees leaving their workstations and requested to be made aware when such departures were necessitated, such as going to the restroom. They said Complainant did not always follow these instructions and had been repeatedly counseled regarding the requirement to give prior notice, but she continued to disregard PM’s instructions. As a result, her duty hours were changed to allow for more supervision. While Complainant cited to two comparators who she indicated engaged in the same conduct but were treated more favorably, management witnesses denied this identified employee engaged in such behavior. Regarding claim 6, Complainant she was sent home and told not to return to work until she was called, and yet, on May 15, 2019, the PM sent her an Absence from Duty letter. PM stated that on the date at issue, she observed Complainant climbing over a railing while leaving the operations area. She stated that while she counseled Complainant regarding the safety violation, Complainant simply walked away. As a result, PM told Complainant to clock out. Complainant was sent an Absence from Duty letter because she failed to report to work after she was scheduled to return. Regarding claim 7, Complainant asserted management converted only two employees to regular full-time status specifically to prevent Complainant from being converted as the next employee on the seniority list. However, the District Complement Coordinator, Gulf Atlantic District explained that pursuant to the Agency’s collective bargaining agreement the Augusta P&DC is a “1:4 office,” meaning that one of every four position vacancies is filled by a transfer. There were four vacancies posted. He stated, however, due to an administrative error, one of the positions was awarded to a career employee and they had to honor that bid. With the remaining three positions, the District Complement Coordinator two of three positions were filled through conversion of Augusta PSE employees with more seniority than Complainant, and one was filled through a transfer. Moreover, after these positions were filled, the District Complement Coordinator stated that Complainant was the “top PSE” and she was converted to a career position in July 2019. 2020003764 5 Regarding claim 9, Complainant alleged that on July 12, 2019, she was charged LWOP despite reporting to work as scheduled. PM stated that on July 3, 2019, Complainant, as a PSE, was on the required yearly break in service so that she could not schedule Complainant to work and she was recorded as on LWOP.2 On or about July 9, 2019, PM received notification from Local Human Resources Shared Services Center (“HRSSC”) that Complainant was being converted to a regular full-time employee on July 20, 2019. Thereafter, PM questioned HRSSC if Agency management need to cancel her Break in Service scheduled for July 12-19, 2019 and was informed that HRSSC was canceling the break in service. PM acknowledged that she forgot to go into the electronic time and attendance system (eRMS) and remove the LWOP that had been entered on July 3, 2019. However, PM stated that when Complainant hit the clock to work it automatically revoked the leave and paid her working hours. Regarding claim 11, Complainant alleged that on September 3, 2019, the PM refused to allow Complainant to work her bid job, PM stated that she does not recall the dates in which she refused to allow Complainant to work her bid job. She further noted that on July 20, 2019, Complainant was converted to a career status and was placed in Mail Processing Clerk position. Regarding claim 13, Complainant claimed that on June 25, 2019, management began enforcing certain policies on Complainant only after she filed grievances, PM noted that no employees have been instructed to “ask” to go to the restroom. She explained that employees have been instructed not to leave their operations without notifying management so that they can get a replacement to run the machine in the employee’s absence. PM stated that she does not recall instructing Complainant to use a specific restroom located outside her normal area. However, she recalled instructing Complainant to use a specific restroom close to her work area at which she was already standing in front of the door of the restroom at the time of the instructions. Regarding claim 14, Complainant asserted that on October 24, 2019, unlike other employees, she was not forewarned that management would be conducting Observations of Work Practice. The Operations Support Specialist stated that she observed Complainant pushing an All-Purpose- Container (“APC”) across the workroom floor with earphones in her ears. She stated that she was with another management official and stopped Complainant to explain safe workplace practices. The Operations Support Specialist stated that when she attempted to discuss her observation with Complainant, she became combative. In sum, after careful consideration of all the evidence surrounding the above events, the record does not Complainant’s claims of discrimination. PM and other management witnesses provided unrebutted testimony that either directly contradicted Complainant’s allegations or that provided a legitimate, non-discriminatory reason for the actions. 2 PSE serve one-year term appointments and are required to have a break in service before being appointed to another term. 2020003764 6 Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were pretext designed to mask discriminatory or retaliatory animus. Harassment/Hostile Work Environment Complainant has also alleged that Agency management created a discriminatory hostile work environment. 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 her protected bases - in this case, her race, sex, color and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). With regard to the events described in the Disparate Treatment section of this decision (above), we will no longer consider them as evidence in support of Complainant’s ongoing harassment claim because we have already determined that neither discriminatory factors nor unlawful retaliatory animus played a part in these matters. Therefore, we will now turn to Complainant’s remaining allegations proffered in support for her harassment/hostile work environment claim. Complainant asserted that on July 26-27, 2018, August 3, 2018, and other dates, she has been spoken to in a loud tone and threatening manner by the Plant Manager. However, the Plant Manager (“PM”) (African American, black, female) denied this allegation and stated that she did not supervise Complainant from July 2018 through September 2018. She also said that she was not at work on the following dates: August 3 and 11, 2018, November 23, 2018, and January 9, 2019. PM stated, however, she had a discussion with Complainant on several occasions. She stated that on one occasion in January 2019, Complainant accused her of yelling at her. PM stated that she averred that she was not yelling at Complainant and that she was talking loudly because they were standing next to a loud machine. Complainant alleged was observed in close proximity and/or filmed while performing her duties, PM asserted that at no time did she filmed any employee under her supervision. She further stated that her job duties require her to observe all operations and employees working in these operations. Complainant claimed that on March 4, 2019, when she tried to hand a note to the PM and PM yelled at her, tried to shove the note into her apron, and nearly knocked her over in the process, PM stated that there was no interaction between her and Complainant. She stated that after receiving the note from Complainant, she asked her what the matter was about. PM acknowledged that she could not read the writing and attempted to hand the note back to Complainant. 2020003764 7 However, Complainant would not take the note from her. PM then told Complainant that she did not have to give her written notes and that she could ask her what she wanted. She stated that when Complainant did not take the note back from her hands, she attempted to place the note in her apron pocket, but it fell to the floor. Complainant informed her that the note was a request to see her union steward and she had a request leave slip a few weeks ago and she had not given them to her. PM noted that she was informed by the union steward that Complainant claimed she touched her. She acknowledged she touched Complainant’s apron pocket with the paper and not with her hand. Moreover, PM received a court summons for simple battery charges filed by Complainant, and she appeared in court and the matter was dismissed. Complainant alleged that on June 18, 2019, the PM approached Complainant and yelled at her and told Complainant to go lunch, then she stated that Complainant could clock out and go home. Specifically, PM instructed Complainant to go to lunch and told her the specific restroom to use to wash up, PM stated that she does not recall telling Complainant to clock out and go home, PM stated that she does not recall the incident. PM stated that when she is supervising the work room floor, she instructs employees when to go to lunch and that if she was not in their immediate areas, she announces their lunch over the PA system. Furthermore, PM stated she does not recall telling Complainant to clock out and go home. The image which emerges from considering the totality of the record is that there were conflicts and tensions particularly with PM’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that PM or any other manager was motivated by discriminatory or retaliatory animus. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred.3 3 On appeal, Complainant does not challenge the April 8, 2019 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the bases of race, sex, and color when her request for a union steward has been denied). Therefore, we have not addressed this issue in our decision. 2020003764 8 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). 2020003764 9 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 November 22, 2021 Date