[Redacted], Elise S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 13, 2021Appeal No. 2021003031 (E.E.O.C. Sep. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elise S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021003031 Agency No. 1J-461-0075-20 DECISION On April 22, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 31, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the relevant time, Complainant worked as a Mail Processing Clerk at the Agency’s Gary, Indiana Processing and Distribution Center (P&DC). On November 4, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment in reprisal for prior EEO activity when: 1. on July 24, 2020, she was issued a 14-Day Suspension; 2. on August 7, 2020, a manager harassed her about being on her phone; 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. 2021003031 2 3. on August 25, 2020, management threatened her and she was escorted from the facility by the police; 4. on or around September 2, 2020, she was issued an Emergency Placement Letter; and 5. on October 24, 2020, she was issued a Notice of Removal. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on March 31, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. 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). Regarding claim 1, Complainant asserted that on July 24, 2020, she was issued a 14-Day Suspension. The Supervisor Distribution Operations (S1) explained that she issued Complainant the 14-Day Suspension due to her Unacceptable Attendance. 2021003031 3 The record contains a copy of the July 14, 2020 Notice of Suspension. Therein, S1 placed Complainant on notice that she was charged with Unsatisfactory Attendance on the following dates: May 14, 2020 00.10 Hours Late May 15, 2020 08.00 Hours Emergency Annual Leave (EAL) May 27, 2020 08.00 Hours Sick Leave (SL) June 2, 2020 05.25 Hours SL June 9, 2020 00.23 Hours Late June 10, 2020 08.00 Hours Annual Leave (AL) Further, S1 determined that Complainant violated Sections 511.42 “Employee Responsibilities” and 665.41 “Requirement of Regular Attendance” of the Employee and Labor Relations Manual (ELM). S1 asserted that Complainant’s prior EEO activity was not a factor in her decision to issue the 14-Day Suspension. The Manager Distribution Operations (Manager) was the concurring official. He stated that Complainant had violated the Agency’s leave policy. Regarding claim 2, Complainant alleged that on August 7, 2020, a manager harassed her about being on her phone. However, the Manager stated that during the relevant period, he walked by Complainant’s Automated Flats Sorting Machine (AFSM) and noted she was talking on the phone while the machine was running. The Manager informed Complainant that she could not be on the phone on the work room floor, and asked her to get off the phone, and she complied with his instructions. Regarding claim 3, Complainant alleged that on August 25, 2020, management threatened her and she was escorted from the facility by the police. Complainant claimed that there was an altercation between her and the union steward regarding a safety issue and the union steward was angry because Complainant used her resources. The Manager acknowledged that Complainant was placed on emergency placement for behavior unbecoming a Postal employee. Regarding claim 4, Complainant claimed that on or around September 2, 2020, she was issued an Emergency Placement Letter. The record contains a copy of the September 2, 2020 Emergency Placement in Off-Duty Status in which the Manager placed Complainant on notice that she was being placed in an off duty (without pay) status effective August 25, 2020. Specifically, the Manager stated the reason for this action was the fear that Complainant had exhibited violence during the August 25 incident and retaining her on duty could be injurious to others. Regarding claim 5, Complainant asserted that on October 24, 2020, she was issued a Notice of Removal for Unacceptable Conduct. According to the Manager, he stated that on August 25, 2020, in the matter identified above in claim 3, Complainant was involved in an altercation with another employee, the union steward. 2021003031 4 He explained that on that day, Complainant was assigned to the Flat Sorter and one of her co- workers called off that night, so he assigned a named employee (Employee 1) to take the spot. Complainant felt that Employee 1 was not an able-bodied replacement because Employee 1 was pregnant. The Manager stated that the machine sat idle for over an hour because Complainant failed to start the machine and work with Employee 1. The Manager further stated that another employee (Employee 2) and the union steward had a talk with the Manager, and he told Employee 2 that the three of them need to resolve the matter, because he was not planning to send yet another employee over for the assignment. At that time, Employee 2 was upset, and Complainant yelled at the union steward that she was not performing her job properly and told her she was a “sell out” and that she would “beat her ass.” Complainant also repeatedly called the union steward a “bitch” and claimed she was going to “whip her ass.” Moreover, the Manager stated that he investigated the incident and physically prevented Complainant from going after the union steward. He noted that Complainant ran around the tubs and trays and ran toward the union steward. Subsequently, the Manager called the Gary Police Department and had police officers remove Complainant from the premises. Beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask unlawful retaliatory animus by the responsible management officials. There is simply no evidence to support a conclusion that Complainant’s prior EEO complaint played any role in the matters at issue. Harassment Complainant has also alleged that 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 prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her prior EEO complaint. A case of harassment is precluded based on our findings, explained above, that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021003031 5 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.2 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). 2 On appeal, Complainant does not challenge the November 17, 2020 partial dismissal issued by the agency regarding one other claim (that she was discriminated against on the basis of prior EEO activity when, around July 2020, she became aware that her file contained a grievance settlement she did not know about). Therefore, we have not addressed this issue in our decision. 2021003031 6 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. 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 September 13, 2021 Date Copy with citationCopy as parenthetical citation