[Redacted], Elvira L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2021000892 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elvira L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021000892 Hearing Nos. 471-2018-00010X 471-2018-00062X Agency Nos. 4J-481-0124-17 4J-481-0010-18 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 15, 2020, final order concerning her consolidated equal employment opportunity (EEO) complaints 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 order. BACKGROUND At the time of events giving rise to her complaints, Complainant was employed by the Agency as a Supervisor, Customer Services at its Flint Burton Southeast Station located in Burton, Michigan (Flint SE). She filed two EEO complaints that alleged discrimination based on race (White), color (white), sex (female), and retaliation (prior EEO activity) when: (1) on April 20, 2017, she was denied a lateral transfer to the Davison Post Office; and discrimination based on race and retaliation when; (2) on or around October 23, 2017, she was involuntarily reassigned to another office; (3) on or around October 27, 2017, she was issued a Letter of Warning; and (4) 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. 2021000892 2 on or around November 2017, she was again involuntarily reassigned. According to the record, Complainant’s direct manager was S1 (Manager, Customer Services). S2 was the Officer in Charge/Acting Postmaster. S3 was the Manager, Post Office Operations (POOM). After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Claim 1: Complainant heard “by word of mouth” that there was going to be a supervisory vacancy at the Davison Post Office, and emailed the Davison Postmaster, A1 (black male) on March 24, 2017, requesting a noncompetitive, lateral transfer. At the time, B1 was the OIC at Davison because A1 had been on a detail since February 2017. A2 (white male) was the POOM over the Davison Post Office. On May 4, 2017, the Detroit District approved an additional supervisor for the Davison Post Office. On May 9, 2017, A1 emailed the Manager, Human Resources, indicating that he selected Complainant for a supervisor position and did not want the position posted competitively. On May 11, 2017, A1 emailed Complainant and asked her to resubmit her request, which she did by email on May 13, 2017. A1 told Complainant that he approved her request to transfer prematurely before he received approval from A2. On May 15 and June 2, 2017, A2 emailed A1 telling him that Complainant’s lateral transfer request must come to him before it could be approved and asked A1 why he told Complainant that her transfer was approved. Prior to becoming a supervisor, Complainant served as an Acting Supervisor at the Davison Post Office from November 2015 - April 2016. A2 stated that, during that time, he had to step in and mediate issues between the union and Complainant regarding how Complainant was treating employees. A2 and B1 discussed Complainant’s request for a lateral transfer, and B1 was unsure if bringing Complainant back to Davison was a good idea because she did not have a good relationship with her fellow employees. D1, the Union Representative provided a statement to A2 outlining issues Complainant had while at Davison. She described Complainant as being “aggressive,” “intimidating,” “belittl[ing],” and a “toxic manager who routinely bullies, threatens [,] and yells at employees.” In Spring 2016, the Union met with A1 and A2 to discuss the “strained and hostile atmosphere created by [Complainant].” There was an agreement that she would be provided additional training. A2 stated that he did not approve Complainant’s request for a lateral transfer based on his previous experience with her which caused a bad workplace environment at Davison, his discussions with the rural academy trainer for the office, and his discussions with B1 as the OIC. 2021000892 3 A2 maintained that he did not have any issues with Complainant’s work performance, but he felt that she was overzealous in her management at Davison which caused conflicts with employees. A2 was also concerned because he was aware that A1 and Complainant’s husband, who was the Postmaster at the Flint Post Office, had a longstanding friendship that could keep A1 from making an objective decision if issues arose regarding Complainant. Also, he felt that A1 attempted to circumvent the process by sending the transfer request directly to the HR Manager.2 Between May and June 2017, two Davison supervisory positions were posted competitively. Complainant applied for both positions but subsequently withdrew both applications. C1 (White female) and C2 (White male) were selected for the positions. Claim 2: The record indicates that Flint SE employees from three different unions provided statements, between June - October 2017, detailing hostile, confrontational, and intimidating treatment by Complainant. This included yelling at employees, telling an employee to finish her route in 8 hours or “find another job,” telling an employee she could not talk to the union because she had not been employed long enough, and telling an employee he had a “poor work ethic.” Employees also stated that Complainant threw “her husband’s name around.” On September 8, 2017, E1, a Flint SE City Carrier, contacted the U.S. Postal Inspection Service (USPIS) to report that Complainant had repeatedly threatened to slash the tires of E2, a Rural Carrier Associate. E3, an employee who witnessed the incident, stated that on September 7, 2017, E2 requested leave, which Complainant denied. When E2 asked for a steward, Complainant reportedly responded, “I will slash your f…ing tires.” During the investigation by USPIS, E2 stated that he felt threatened. S3 came to Flint SE to investigate after the Union raised concerns about how S1 handled the matter. On October 18, 2017, Complainant contacted the USPIS to tell them that E4, an employee, threatened to shoot her and E5, another employee, on October 14, 2017. E5 told the USPIS that she did not hear the threat but was informed by Complainant that E4 did not like them and threated to “blow off their heads.” The three employees who were present denied that E4 threatened to hurt anyone in the post office; rather, he threatened to harm himself and blow up houses on his route. E4 was given the option to resign or be fired. When Complainant told E5 about E4’s alleged threat, E5 became upset and asked why the USPIS had not been called, and demanded Complainant call them. E5 stated that Complainant wanted her to call the USPIS anonymously and not to tell anyone that Complainant told her about the threats. Complainant informed four other employees about the threats. S1 told E5 that E4 did not threaten her or Complainant, but only stated that he did not like them. 2 In June 2017, A1 filed a discrimination complaint regarding the overturning of his decision to approve Complainant’s lateral transfer to Davison, while another Postmaster laterally transferred someone to their office. The complaint was dismissed, in July 2017, on the grounds that it failed to state a claim. There is no evidence that A1 filed an appeal. 2021000892 4 Based on the tire slashing incident with E2, telling E5 that E4 wanted to “blow [both of their] head[s] off,” and the allegations about Complainant’s supervisory style, S3 decided to temporarily reassign Complainant to the Flint Main Post Office (Flint Main) until his investigation could be completed. S3 found Complainant’s comments to be “unprofessional, unwarranted, and [that they] created a hostile work environment.” S3 planned to schedule a follow-up meeting with Complainant upon her reporting to Flint Main, but Complainant did not report for duty on October 23, 2017, and called in for extended medical leave. Claim 3: On October 26, 2017, S1 conducted an investigative interview with Complainant regarding the incident with E4 and E5. On October 27, 2017, he issued Complainant a Letter of Warning for Conduct/Talking to Employee in a Public Setting and Escalating Office Tension. The letter of warning stated that on October 14, 2017, rumors circulated that an employee threatened Complainant and E5, and that on October 18, 2017, Complainant repeated that rumor to E5 on the workroom floor, who became upset, creating alarm amongst the workforce. S3 was not involved in the decision to issue Complainant a Letter of Warning. He stated that he only told S1 to interview Complainant about the incident, and S1 assumed that he wanted corrective action to be taken. On November 1, 2017, S3 instructed S2 to rescind the Letter of Warning, which was done. Claim 4: S3 stated that he expected Complainant’s temporary assignment to Flint Main to be short while he completed the interview process with her. After Complainant did not report to Flint Main, S3 decided that Flint Main was not the best location to assign Complainant since her husband was the Postmaster of the Flint Post Office and was serving a detail at Flint Main. Therefore, S3 decided that the next closest office was the Michigan Metroplex. Therefore, on November 15, 2017, S3 issued Complainant a letter informing her that there was a pending investigation into circumstances at Flint SE and that it was in the best interest of the Agency to assign her to a separate installation until the investigation was concluded. She was therefore notified that she should report to the Michigan Metroplex on November 18, 2017. The letter also requested that she complete online training courses entitled “Better Listener,” “Better Workplace Relationship[s],” “Connecting with Others,” “Professionalism,” “Bull[y]ing in the Workplace,” and “Coping with Aggressiveness.” Complainant did not report to the Michigan Metroplex and stayed on extended leave until August 22, 2018. S3 was unable to finalize his investigation because he was unable to interview Complainant while she was off duty. The AJ found that assuming, arguendo, Complainant could establish a prima facie case of discrimination, she failed to present evidence of pretext with respect to the Agency’s stated reasons for its actions. According to the AJ, A2 and S3 proffered legitimate, nondiscriminatory reasons for their actions. 2021000892 5 When Complainant requested a lateral transfer to Davison, A2 was aware of tensions between her and the employees located there when she served on a detail as a supervisor and he was personally involved in mediation efforts regarding a dispute between the union and Complainant. Further, the AJ noted when the positions were posted competitively, Complainant applied but withdrew her application before she could be considered by the review committee. Similarly, while Complainant was a Supervisor at Flint SE, the AJ noted that several serious allegations about her behavior were made to S3. These complaints included Complainant threatening to slash an employee’s tires and telling a subordinate a rumor that another employee had threatened to “blow her head off.” As evidence of discrimination, the AJ noted Complainant’s allegation that her husband told her that he had heard that A2 once called Complainant “unethical” because she has biracial children.3 Complainant did not state who her husband heard this from and there was no information in the record regarding how this unidentified person knew A2 called Complainant unethical because of her children’s race. The AJ found that speculation regarding A2’s motive, especially when based on unattributed hearsay, was simply insufficient to establish pretext and defeat summary judgment. The AJ also noted Complainant’s contention that A1 told her that he believed the race of her children was the reason she was denied a transfer because, in the 1990s, when A1 was delivering mail, A2 told him he was not allowed to carry in Sandusky due to the color of his skin. Assuming A2 did make such a statement, 20 or more years ago, the AJ found that Complainant still failed to establish pretext because this alleged statement occurred decades prior to Complainant’s transfer request and had nothing to do with Complainant or her application for transfer to Davison. Complainant also maintained that S3’s transfer of her from Flint SE was not authorized by policy. The AJ, however, found that, absent evidence of discrimination, a policy violation does not by itself create an inference of discrimination or retaliation. In sum, the AJ found that A2 and S3 received multiple complaints regarding Complainant’s inappropriate behavior, some of which arguably included threats of violence/property damage. As a result, A2 did not approve Complainant’s transfer to Davison, and S3 launched an investigation into Complainant that resulted in her involuntary transfers. Finally, S1’s Letter of Warning to Complainant was rescinded at S3’s direction. Complainant, according to the AJ, could not establish pretext with respect to these actions. 3 A2 denied knowing the race of Complainant’s children other than the recent baby that she and her husband had, which he assumed was White because they both are White. 2021000892 6 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in her favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, and the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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. 2021000892 7 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). 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. 2021000892 8 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 29, 2021 Date