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

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020001584 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estate of Angelique H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern), Agency. Appeal No. 2020001584 Agency No. 4G-760-0031-19 DECISION On November 5, 2019, the estate of Complainant filed an appeal pursuant to the 29 C.F.R. § 1614.403(a), from the Agency’s October 25, 2019 decision concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Rural Carrier Associate, serving in a probationary period, at the Agency’s Granbury Post Office in Granbury, Texas. On January 3, 2019, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. Complainant died on February 2, 2019, before she could file a formal complaint. On February 14, 2019, Complainant’s husband, representing her estate, filed a formal EEO complaint alleging the Agency discriminated against Complainant based on race (white), disability and age (over 40) 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. 2020001584 2 1. she was spoken to in an offensive and demeaning manner; 2. on unspecified dates following November 19, 2018, she was followed and observed while performing her duties; 3. on unspecified dates following November 19, 2018, she was instructed not to case her flats first; 4. on unspecified dates following November 19, 2018, she was informed that she was not wearing proper footwear; 5. on unspecified dates following November 19, 2018, she was confronted about time- wasting practices; 6. on December 12 and 18, 2018, she was subjected to four investigative interviews; 7. on December 20, 2018, she was issued discipline; 8. she was given the option to resign in lieu of being terminated; 9. she was left out late on her route without any assistance, including being forced to work 12 to 16 hours a day; 10. management refused to process her claim for being injured on the job; and 11. on January 31, 2019, management refused to allow her to return to work. The Agency accepted the complaint for investigation. However, as Complainant was deceased, no affidavit could be obtained from her. Her husband did submit an affidavit. After the investigation of the formal complaint, Complainant’s estate 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’s estate did not respond. In its October 25, 2019 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. 2020001584 3 ANALYSIS AND FINDINGS 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). 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 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). Here, during the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Sometime in late November 2018, Complainant fell while delivering a parcel. As a result of the fall, she asserted she suffered a “fractured vertebrae.” However, she continued to come to work until mid-December 2018, when she filed a workers’ compensation claim. She was absent from work from that point until her death. The record shows that in late January 2019, management sent her a written inquiry about her extended absence and, in response, she attempted to return to work on January 31, 2019. However, management did not allow her to return at that time, asserting it needed a medical release from her physician indicating she could work. Complainant died several days later. The Postmaster (mixed race, over 40) denied speaking to Complainant in a demeaning matter. She stated that she had spoken with Complainant on numerous occasions because she was struggling to learning her route, appearance, attendance postal procedures, and interaction with her co-workers. The Postmaster stated she felt Complainant was given a fair share of training and coaching to learn her route. The Postmaster stated that Complainant struggled to report to duty timely and she constantly had problems with attire and footwear. In addition, the Postmaster stated that Complainant was not getting along with some of her co-workers. 2020001584 4 The Postmaster indicated that Complainant was often very defensive when coached on areas for improvement. Management witnesses did confirm that in one conversation with Complainant about her performance issues, there was a discussion with her about the advantages of resigning in lieu of being terminated if she did not pass her probationary period. They stated this discussion occurred in the context of Complainant and her union representative asking about resignation options. With respect to Complainant’s allegation that she was followed and/or observed while performing her duties, the Postmaster explained Complainant was in her probationary period and management was required to conduct performance evaluations and street observations on all new employees. The Postmaster noted that in November 2018 and December 2018, Complainant was informed that she was not wearing the proper footwear per the Agency’s guidelines. She stated that in September 2018, all new employees, including Complainant, were given the guidelines about footwear during orientation. The supervisor stated that she counseled Complainant because she was wearing ballet flats rather than more sturdy footwear, which was a safety issue. With regard to the allegation that Complainant was subjected to four investigative interviews, management witnesses indicated these were routine interview that occurred to address work performance issues (occasions where she was unable to complete route in timely manner without assistance) and attendance problems, as well as to determine why Complainant had failed to report her work-related injury at the time it occurred as required by Agency policy. Complainant was issued a letter of warning for attendance. The record indicates that she had 5 unscheduled absences between October 2 and December 11, 2018. While Complainant claimed at the time that the absences were due to her work-related injury, the evidence shows that four of the absences occurred prior to the injury. Management witnesses denied refusing to process Complainant’s workers’ compensation claim, although asserts Complainant did not submit it until weeks after the alleged injury. They claim that the paperwork was promptly processed once it was received. Once management has articulated legitimate, non-discriminatory reasons for the disputed actions, the burden of proof is on the complainant to prove the proffered reasons were pretext designed to mask the true discriminatory motivations. Here, there is simply no evidence whatsoever that Complainant’s race, age or animus towards her medical condition played a role in these matters. Again, we note that while Complainant’s husband submitted an affidavit on her behalf, he did not directly witness the events at issue and in most instances could only offer hearsay or his own opinions rather than evidence to support the discrimination claims. Moreover, to the extent that Complainant is also asserting a discriminatory harassment claim, that is precluded based on our findings that Complainant failed to establish that the action taken by management was motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2020001584 5 CONCLUSION We AFFIRM the Agency’s finding no discrimination 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 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. 2020001584 6 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 June 8, 2021 Date