[Redacted], Dortha G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Apr 15, 2021

Appeal No. 2020000971 (E.E.O.C. Apr. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dortha G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000971 Agency No. 4K-300-0081-19 DECISION On October 28, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 27, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On September 1, 2018, Complainant was hired as a City Carrier Assistant (CCA) at the Agency’s Broadview Station in Atlanta, Georgia, subject to a 60-day probationary period. On April 22, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Christian), disability, and reprisal for prior EEO activity when: 1. Starting on October 21, 2018, she has been required to case routes; 2. on October 25, 2018, November 20 and 28, 2018, and other dates, she has been singled out and/or spoken to in a demeaning manner, and on or about October 25, 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. 2020000971 2 2018, after reporting that she was being singled out, management failed to properly address the matter; 3. on October 26, 209, and 30, 2018, and other dates, her attempts to speak with management were denied; 4. on November 13, 2018, her request for a hold-down assignment of Route 21 and on November 17, 2018, her request for a hold-down assignment of Route 12, were denied; 5. on November 20, 2018, during a meeting held by management with all City Carrier Assistants, she was not given an opportunity to speak; and 6. on or about November 30, 2018, when she reported for duty, she was informed that she was terminated during her probationary period for unsatisfactory conduct/performance. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond. In its September 27, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment - Claims 1, 4 and 6 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). 2020000971 3 Complainant identified her disabilities as Attention Deficit Hyperactivity Disorder (ADHD) and anxiety. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. Based on the evidence developed during the investigation of the formal complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on October 21, 2018, and on date(s) to be specified, she has been required to case routes. The Supervisor Customer Services (male) was Complainant’s supervisor during the relevant period. The supervisor stated that as a CCA, Complaint was required to pick up priority mail at the facility and then case an entire route. The supervisor stated further that he relied on the Agency’s written policy guidance M-41 Carrier Duties and Responsibilities regarding what assignments he gave to Complainant. Regarding claim 4, Complainant claimed that on November 13, 2018, her request for a hold- down assignment of Route 21 and on November 17, 2018, her request for a hold-down assignment of Route 12 were denied.2 The supervisor explained that if two or more employees submit a request for a hold-down, the determination as to who gets the hold-down is based on seniority. He also noted that completion of a probationary period is required for a hold-down. The supervisor stated that a CCA employee was given a hold-down on Route 21 because he had a more seniority than Complainant who was still in her probationary period. As for Route 12, the supervisor stated that on November 17, 2018, another named CCA was not given a hold-down on this route as Complainan claimed, and the hold-down was given to a named female employee, again based on seniority. Regarding claim 6, Complainant asserted that on or about November 30, 2018, when she reported for duty, she was informed that she was terminated during her probationary period for unsatisfactory conduct/performance. The Manager was the deciding official to terminate Complainant during her probationary period for unsatisfactory conduct/performance. Before making this decision, the Manager noted that on November 2, 2018, during her 60-day evaluation, Complainant was given an “unacceptable” on her conduct. He also noted that on November 28, 2018, Complainant went out to her route and returned to the facility approximately 30 minutes later, stating that she could not do her job anymore and announced that she quit working for the Agency and then proceeded to clock out. As a result, Complainant abandoned her assignment for the day. 2 A fair reading of the record reflects that the term “hold down” refers to an open assignment retained by an Agency employee under various circumstances. 2020000971 4 The evidence of record fully supports a determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. The record evidence simply does not a finding that of the Agency’s actions were motivated by discriminatory animus toward Complainant’s race, sex, religion, disability, and/or retaliatory animus. Harassment To the extent that Complainant alleged that the matters raised in the formal complaint constituted discriminatory harassment, 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 basis - in this case, her race, sex, religion, disability, and/or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding claim 2, Complainant alleged that on October 25, 2018, November 20 and 28, 2018, and other dates, she has been singled out and/or spoken to in a demeaning manner, and on or about October 25, 2018, after reporting that she was being singled out, management failed to properly address the matter. The Manager (male) denied that on or around October 25, 2018, he received any email from Complainant complaining about harassment as she asserted. Complainant had asserted that during a CCA meeting on November 20, 2018, when it was her turn to speak, the Manager interrupted her by stating that Complainant was letting the mail cause her stress, that Complainant denied that the mail stressed her, and that the Manager then responded that this was not the appropriated time to raise such concerns. The Manager denied speaking to Complainant in a demeaning manner. He said he was speaking when Complainant interrupted him several times and he told her not to disrupt the meeting. Moreover, the Manager stated that the purpose of the CCA meeting was to inform employees of their expectations of attendance, delivering all of the mail, and conduct in the workplace. The Manager stated that on or around November 28, 2018, he asked Complainant a question because she could not give him the times of her assignment to justify returning to the facility after 7:00 p.m. He then instructed Complainant to get the packages delivered before the leasing office closed. Complainant acknowledged the Manager’s instructions by stating that she would do so, but that she is not “Superwoman,” to which the Manager did not respond. Regarding claim 3, Complainant alleged that on October 26 and 30, 2018, and on other dates, her attempts to speak with management were denied. The Manager stated that he does not recall the dates that Complainant attempted to talk with him, but he remembers that at some point he approached her concerning her behavior on the workroom floor. 2020000971 5 Regarding claim 5, Complainant alleged that on November 20, 2018, during a meeting held by management with all CCAs, she was not given an opportunity to speak. The supervisor admitted he does not recall two named CCAs speaking during the meeting but explained that the other two CCAs had an opportunity to discuss the subject he raised during the meeting. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, sex, religion, disability, and/or prior protected activity. A case 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. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020000971 6 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. 2020000971 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations April 15, 2021 Date