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

Equal Employment Opportunity Commission

Feb 28, 2022

Appeal No. 2021001130 (E.E.O.C. Feb. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Estell L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021001130 Hearing No. 471-2018-00004X Agency No. 4J-493-0012-17 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 3, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of her complaint, Complainant was employed as a full-time Building Maintenance Custodian at the East Lansing Post Office in East Lansing, Michigan. Complainant alleged that Postmaster A1, Postmaster A2, Supervisors S1 and S2, and the Manager Post Office Operations M1 subjected her to discriminatory harassment based on race (Filipino) and retaliation (prior EEO activity) when: (1) on February 24, 2017, she was ordered to leave the building and was kept from working for over a week; (2) in March 2017, her privacy was violated when a file on her was sent to the Agency nurse; (3) in March 2017, she was not permitted to speak in a 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. 2021001130 2 meeting as her co-workers were; (4) in March 2017, her co-workers were told she made a gun comment and would not be returning to the unit; (5) since January 2017, she has been bullied by her co-workers and management did nothing; and (6) on April 13, 2017, she was issued a Letter of Warning. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing, but subsequently withdrew her request. Consequently, the AJ remanded the complaint to the Agency to issue a final decision. Thereafter, the Agency issued a final decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. Regarding claim 1, Complainant stated that, on February 24, 2017, while speaking with A1, she threatened to quit her employment with the Agency due to what she felt was discriminatory treatment to which she was being subjected. She maintained that she was frustrated with being accused of doing things she had not done. Specifically, she stated that A1 falsely accused her of cutting down a disability parking sign. After her threat to quit, Complainant maintained that A1 told her to come into his office and sign resignation papers, but she refused and stated that she would not sign anything without an attorney since she would be quitting as a result of discriminatory treatment. She stated that A1 then ordered her to leave the building. According to Complainant, on March 7, 2017, U1, her Union Steward, informed her that she was to report back to work on March 8, 2017, and attend a meeting with the Postal Inspection Service, and that M1 had instructed A1 to give Complainant a few days cool down time and then bring her back to work. A1 stated that Complainant was told to leave the building because, during their discussion, she quit, and he told her, “You quit you need to leave the building.” He noted that C1, an employee and a Union representative, was his witness to this. A1 maintained that non-Postal employees are not allowed on the workroom floor. Regarding why Complainant was out of the workplace so long, A1 stated that he talked to N1, the Nurse, M1, and the Postal Inspectors. These conversations centered around a conversation that A1 had with Complainant, about a week before he sent her home, concerning a loaded weapon that she had at her home.2 Shortly after claim 1, A2 became the Postmaster of the East Lansing office, and A1 moved to a new location. 2 In an unsworn statement contained in the record, A1 recounted that: [Complainant] was looking at her phone and texting. I approached her and asked what you are doing you just got done telling me about another employee not working and here you are doing the same thing. She said that she kind of had an emergency at home. This is what she told me. ‘I don’t know if you know but I have a concealed weapon permit and there was a disturbance at my house last night.’ She then said, ‘I have a 9 mm Glock’ and that it is loaded, and I left it sitting on my dresser and my grandson is at my house.’ She again told me that she 2021001130 3 M1 stated that she recalled the incident with Complainant and the disabled parking spot being painted over and the sign removed. She cited Complainant’s conduct combined with the statement about having a weapon at home as the reasons why she was sent home and remained off work. M1 felt the situation had escalated to an unwelcome, inappropriate, and unacceptable workplace comment that A1 was not comfortable with, and that there was a need for an assessment and investigation. M1 noted that it is not uncommon for employees to be out of the building while an investigation was conducted. During the meeting on February 24, 2017, C1 recounted that A1 asked Complainant why she took down the disability parking signs after she was told not to and Complainant replied, “I’ve had enough of this crap; I quit.” C1 stated that she then tossed her keys against the wall, which fell behind a desk. A1, he stated, immediately informed Complainant that she needed to leave the building, to which she responded, “No, I don’t quit, I will call my attorney.” A1 replied that she could call whoever she wanted, but she had to leave the building now. C1 stated that Complainant gathered her belongings to leave so he went back to work. Regarding claim 2, Complainant maintained that she was notified by A2 that the nurse in the Grand Rapids’ office had her file and had opined that she was unstable and should not have her job back. Complainant stated that he also told her that the nurse did not like her. Complainant stated that she asked A2 about the file and why the nurse would have a copy, and that she felt violated that such information would be disclosed. According to Complainant, her privacy rights under the Rehabilitation Act were violated. A2 stated that he did not tell Complainant that N1 opined that she was unstable, that she stated Complainant should not have her job back, or that she did not like Complainant. He stated that he did not know who sent the information to the Nurse, but he did not think that a file was sent to her. A2 noted that N1 was initially consulted by A1 after the incident set forth in claim 1. A2 followed up with her in order to bring Complainant back to work. A2 stated that he brought Complainant back to work, because he did not believe the incident rose to the level of removal. N1, he explained, was under the misunderstanding that Complainant threw the keys at A1. A2 brought Complainant back to work and provided her back pay. N1, the Area Occupational Health Nurse Administrator at the time, stated that she served as a resource to management for medical issues. She stated that she had no authority over Complainant, nor did Complainant report to her. N1 stated that she did not receive a file on Complainant, but only one document, dated February 27, 2017, from a medical practice. The had a pistol loaded at home and that I should know this. It really didn’t sink in until after the conversation with her as to why she felt it important to make sure I knew that she had a pistol and it was loaded. I told the . . . nurse this story because it was pressing on my mind that she maybe this was more than I initially thought [it] was [that] this [was] some sort of threat like[,] I have a pistol [A1’s name] so you better back off. 2021001130 4 document did not contain a diagnosis or a prognosis nor any detailed health information but merely stated that Complainant did not appear to be a threat to herself or others. N1 stated that she was contacted by A1 and asked to review the document for its adequacy in order to clear Complainant for return to work after she exhibited numerous episodes of concerning behavior. N1 felt that what A1 described reflected violence and threats of violence and recommended that he not allow Complainant to return to work due to those concerns and that he should contact Labor Relations about the next best steps. N1 stated that she stored the documentation and all her correspondence with A1 in Complainant’s Employee Medical Folder. As the Occupational Health Nurse Administrator, she was the custodian of medical records for employees and the records she managed included any medical documentation not related to an on-the-job injury. Regarding claim 3, Complainant stated that in March 2017, soon after she returned to work, A2 held a meeting with the other custodians, C2 (White), and C3 (White), to discuss her return. According to Complainant, A2 informed everyone that the meeting was being held to try to ease the animosity in the office. Complainant stated that A2 allowed her co-workers to speak and complain about her but, when she attempted to speak, A2 asked her to be quiet. She stated that when she later asked A2 if she could say something, he put his hand up signaling no. After the meeting, A2, according to Complainant, informed her that she was not allowed to speak because C3 was getting ready to go off the “deep end,” and Complainant was showing great maturity by not pressing to talk. Complainant disagreed and felt that she should have been allowed to express her opinions during the meeting like the others. A2 stated that he and U1 (a union representative) both thought it was a good idea to bring the three custodial employees together prior to Complainant’s return, and that they both also thought it was a good idea for Complainant not to reply to the emotional allegations from her coworkers. According to A2, the coworkers were allowed to speak because they were upset that he brought Complainant back to work. Complainant, he stated, was not allowed to speak because nothing she stated would have added value to the conversation and it would have just added fuel to the fire. A2 stated that he asked Complainant not to speak and she complied. He denied telling Complainant that she was not allowed to speak because C3 was getting ready to go off the “deep end,” but he did acknowledge that C3 was crying during most of the meeting. C2 stated that she and C3 contacted the union to address Complainant’s bullying and harassment towards them. She stated that Complainant was not supposed to be at the meeting with A2 and U1. She maintained, however, that she, C3, and Complainant were all allowed to speak at the meeting. C3 stated that the meeting was a result of her and C2’s request to have a meeting with U1 and A2 to discuss the issues that were going on at the time. She stated that is why Complainant was eventually asked to step out because it was supposed to be a private meeting, and Complainant was not even supposed to be there. 2021001130 5 With respect to claim 4, Complainant stated that, on February 14, 2017, she was talking on the telephone to her son concerning a firearm at her residence. A1 was present during the conversation and could hear her talking. Subsequently, she was called into an investigative interview with the Postal Inspection Service concerning the conversation. She maintained that, in addition, she was notified by S1, a supervisor, that he was told she would not be coming back because she had made a gun comment. Complainant stated that S1 would have only received such misinformation from A1. Complainant further noted that A1 maintained she mentioned a 9 mm Glock, but she did not own one. Finally, Complainant indicated that others, including A2, have discussed their ownership of guns in the workplace but were not investigated. A1 stated that he made S1 aware of the situation regarding Complainant’s gun comment because he turned everything over to the East Lansing managers when he left the office. A1 stated that, feeling threatened, he left a week earlier than originally planned. He denied hearing Complainant’s conversation on the phone but insisted that she told him herself why she was on the phone after she hung up. Although he wrote in his unsworn statement that Complainant referred to a 9 mm Glock, A1 indicated that he was not sure if that was the make and model, but she did tell him that she had a loaded gun at home on her dresser or nightstand. Regarding claim 5, Complainant maintained that she was bullied and harassed by C2, C3, and C4, a carrier, and that she reported this behavior to A1, in February 2017, A2 in March 2017, and later S1 and S2. Complainant stated that in April 2017, C2 bullied her by accusing Complainant of stalking her; of taking back to back annual leave, leaving her to work alone on the two busiest days; going to co-workers about what Complainant did or did not say; and maligning her to the point where employees would come up to Complainant and state, “Causing trouble again huh?” and other comments. C3, she maintained, would close the maintenance doors in-her face when she was within a short distance away; block the entrance to the maintenance doors; place personal items such as shoes, books, lotion, etc., in Complainant’s work space; call her names such as “hypocritical Christian Bitch;” and complained when Complainant played music and referred to it as “Christian s**t.” With respect to C4, Complainant asserted that she would park inches from her car; follow her around; sing songs about Complainant being lazy; told management that she was not going to stop until Complainant retired; cursed management when she was instructed to stop harassing Complainant; and called Complainant a “Christian piece of s**t.” C2 accused Complainant of stalking her and reported her concerns to management. C2 denied leaving Complainant to work on the busiest days alone, going to co-workers about what Complainant did or did not say, or maligning Complainant. She claimed that Complainant’s actions started all the trouble. C3 stated that she never blocked a doorway. She also noted that the maintenance room is not Complainant’s personal space as there are three employees who work out of that room, not just her. C3 denied calling Complainant a “Bitch,” but stated that she did call her “a hypocrite” because she claimed to be a Christian and plays Christian radio but her actions and behavior in the workplace were not those of a Christian. C3 affirmed that management told her not to call 2021001130 6 Complainant names. Finally, C3 stated that Complainant keeps up a lot of problems within the office and when she gets in trouble or she does not get her way, she plays the victim. C4 stated that she parked inches from Complainant’s car because there was limited parking. She denied following Complainant around, singing songs about her being lazy, or calling her names. C4 also denied informing managers that she was not going to stop and would continue until Complainant retired or cursing managers when asked to stop harassing Complainant. The various supervisors and managers denied any knowledge of Complainant being bullied or harassed because of her race or prior EEO activity by her coworkers but acknowledged that they did not get along and were constantly doing things to upset each other. Contrary to Complainant’s assertions otherwise, management maintained that they took actions to address verified inappropriate behavior. S1 stated that he received complaints from all parties, but that many issues had no credibility. With respect to claim 6, Complainant was issued a Letter of Warning on April 13, 2017, by A2, as a result of her February 24, 2017, altercation with A1. Although A2 brought Complainant back to work, he issued the Letter of Warning because she threw her keys, approximately four feet, into a wall and they landed behind a desk. Complainant stated that she disagreed with the reason for the Letter of Warning and refused to sign. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment: Claims 1, 3, 4, and 6 To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 2021001130 7 Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in claims 1, 3, 4, and 6. We also find no persuasive evidence of pretext. There is no indication that A1’s decision to send Complainant home after she quit, to not allow her to return, and to initiate an investigation regarding her comments about owning a loaded weapon, was motivated by discriminatory animus. We note in this regard the M1’s assertion that A1 felt Complainant’s conduct, combined with her statement about having a loaded weapon at home, escalated the situation to an unwelcome, inappropriate, and unacceptable level that required an assessment and an investigation. Complainant maintained that others in the workplace talked about owning guns without any repercussions; however, there is no evidence that the circumstances were similar because, in Complainant’s instance, A1 felt that he was personally being threatened. With respect to claim 4, A2 stated that he asked Complainant not to speak because he felt that it was more important to let C2 and C3 express their concerns since Complainant was returning to the workplace. Although an action may be unfair, a finding of discrimination cannot be made so long as, in taking the action, the Agency was not motivated by discriminatory animus. Pretext analysis is not concerned with whether actions are unfair or erroneous but on whether the actions are motivated by discriminatory animus. Gregg B. v. Dep’t of the Army, EEOC Appeal No. 0120151783 (June 7, 2017); Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). Here, we do not find that A2 acted discriminatorily. Finally, Complainant offered no evidence that A2’s issuance of the Letter of Warning was discriminatory. A2, upon returning Complainant back to the workplace, felt that her conduct in throwing the keys warranted some level discipline. Medical Disclosure: Claim 2 Complainant maintained that her privacy rights under the Rehabilitation Act were violated when confidential medical information was disclosed N1.3 At the outset, we note that Complainant is 3The Rehabilitation Act does not limit the prohibitions against improper medical inquiries to individuals with disabilities. 29 C.F.R. § 1630.14(c); Meeker v. U.S. Postal Serv., EEOC Appeal No. 01A12137 (Aug. 23, 2002) 2021001130 8 not alleging that she was subjected to an unlawful medical inquiry or examination; therefore, for purposes of our decision, we will assume that the Agency obtained the February 27, 2017, document properly. N1 stated that A1 provided her with the document and asked her to review it for adequacy in order to clear Complainant for return to work after she exhibited numerous episodes of concerning behavior. According to N1, the document did not contain a diagnosis or a prognosis or any other detailed health information but merely stated that Complainant did not appear to be a threat to herself or others. 29 C.F.R. § 1630.14(c)(1)(i) provides that: information obtained under paragraph (c) of this section regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that: (i) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations. N1, in her capacity as an Occupational Health Nurse, and a resource to management for medical issues, advised A1 and A2 on Complainant’s suitability to return to the workplace. The information that she received did not contained confidential information, according to N1, such as a diagnosis or a prognosis, but only the opinion that Complainant was not a threat to herself or others. N1, the custodian of medical records for employees, stated that she stored the document and all her correspondence with A1 in Complainant’s Employee Medical Folder, not her personnel file. There is no evidence that she shared any information to anyone other than A1 and A2. Accordingly, we find that no violation of the Rehabilitation Act took place here. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris that Complainant’s claim of a hostile work environment must fail with regard to claims 1, 2, 3, 4 and 6. A finding of a hostile work environment is precluded by our 2021001130 9 determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to claim 5, there is no dispute that Complainant, C2, C3, and C4 did not like each other and were constantly engaging in disputes; however, we find no persuasive evidence that the matters Complainant characterized as bullying behavior took place because of her race or prior EEO activity. Title VII forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). According to C1, he has witnessed Complainant, C2, and C3 argue on several occasions about work related matters, but he could not recall seeing any kind of bullying behavior by any of them. Likewise, he noted that, over 23 years, Complainant has told him many things about her coworkers, but in that time, he could not recall anything that he thought was threatening enough to warrant a serious response. CONCLUSION Upon review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subjected to a hostile work environment by the Agency. Accordingly, we AFFIRM the Agency’s final decision. 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 2021001130 10 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. 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. 2021001130 11 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 February 28, 2022 Date