[Redacted], Farah S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020003304 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Farah S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003304 Agency No. 4G-780-0138-19 DECISION On May 2, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 1, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was on detail as Station Manager of Lamar Park in Corpus Christi from her position as Postmaster, EAS-22, in Pflugerville, Texas. Complainant’s immediate supervisor (S1) was the Manager Post Office Operations (MPOO) for the Rio Grande District, assigned to Austin, Texas. On August 22, 2019 (and later amended), Complainant filed a formal complaint alleging that she was subjected to discrimination and a hostile work environment by the Agency on the bases of sex (female), age (YOB:1962), and in reprisal for prior protected EEO activity 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. 2020003304 2 1. While on detail two and one-half months prior to May 10, 2019, her supervisor (S1) placed confidential files in the hallway and made changes to her office and staff which subsequently forced her to end her detail assignment; 2. On May 10, 2019, when Complainant returned from her detail assignment, she was placed on a Performance Improvement Plan (PIP); 3. On May 3, 2019, May 10, 2019, and continuing, Complainant was spoken to in a derogatory and demeaning manner and was placed on notice on May 10, 2019; 4. At the beginning of 2019, Complainant was not included in career development meetings and removed from Executive Leadership Development (ELD) projects; 5. Prior to July 4, 2019, Complainant was not included in the instructions for the July 4th Holiday operations; 6. On July 2, 2019, Complainant received late instructions to attend a Leadership Telecom; 7. On May 10, 2019, Complainant was called “Paranoid;” 8. On October 23, 2019, S1 singled Complainant out during a teleconference; and 9. On unspecified dates, Complainant was subjected to a hostile work environment by S1 when she copied Complainant’s male peers on email requests that she sent to S1, failed to help Complainant when Complainant requested S1’s assistance, and singled Complainant out for criticism. In the beginning of 2019, Complainant stated she was placed on a sub-team of an EAS Leadership Development (ELD) project. S1 bumped Complainant’s sub-team out of the ELD team and added a non-ELD male Postmaster to do the project. Complainant alleged S1 took her off the ELD team because S1 did not like her and preferred her male co-workers. Complainant went on detail in March 2019 as Station Manager in Corpus Christi. During that time, S1 came to work at the Pflugerville facility, where S1 made an office for herself in the supervisor’s administrative office in the Pflugerville facility. Among other actions, Complainant stated S1 emptied out the office placing the supervisor’s papers into a hamper, put her own items into Complainant’s refrigerator, took the computer out of the Postmaster’s office and moved it to where there was no local area network line, and disabled Complainant’s access to unit emails. S1 also moved the passport sales area to a side office. These actions resulted in Complainant’s operation and management of employees to be disrupted and her authority undermined. Complainant averred she told S1 that she seemed to be punishing Complainant for going on detail. 2020003304 3 Complainant returned from her detail on May 10, 2019, and alleged that when she returned, S1 placed her on a Performance Improvement Plan (PIP). Complainant believed she was placed on a PIP because S1 informed her that in February 2019, leadership questioned S1 for Pflugerville’s poor performance. S1 then had Complainant attend weekly teleconferences for performance issues. Complainant stated when she tried to find out why she was being placed on a PIP, S1 did not give her any answers and said Complainant was being paranoid. Complainant’s coworker (CW1), detailed as the Supervisor in the Pflugerville facility, stated he had gone with Complainant to S1’s temporary office to discuss his status so Complainant could act accordingly. He stated S1 replied that she did not want to deal with the issue and subsequently told Complainant she was paranoid. Complainant asked S1 if she was a psychotherapist, and S1 informed Complainant she was being insubordinate. On July 2, 2019, Complainant was notified at 11:35 a.m. that she was supposed to be on a leadership conference that began at 11:00 a.m. and that she had to give a presentation. Complainant averred S1 did not give Complainant advance notice of the presentation and teleconference so that Complainant would look bad. Complainant informed the Acting Manager Operations, that she had just been informed about the teleconference and did not have the link to join. Complainant alleged S1 also failed to give her instructions for July 4th operations so that her operation would fail or burden her budget with extra hours. Had she been given the instructions in advance; it would have allowed her to send her unit’s mail to a hub like her male peers. Instead, she had to send her mail to the Austin Processing and Distribution Center. During a teleconference regarding proposed changes for the return and leave times for rural carriers, Complainant informed S1 there were contractual limitations on management’s ability to set such times for rural carriers and that she had rural routes outside of the new proposed requirements. S1 responded that Complainant needed to get the rural carriers at Pflugerville to make their sortation times, so that Complainant could bring them in earlier. Complainant later sent S1 an email regarding these proposed changes. Complainant alleged that S1 gave preference to her younger, male peers because S1 did not treat them like S1 treated her. S1 routinely failed to acknowledge Complainant as knowledgeable and would single her out for criticism. S1 sent Complainant an email in August 7, 2019, to Complainant and three other Postmasters regarding a customer complaint for each of their own facilities. S1 also copied MPOO staff, and the postmasters for Leandler and Buda, Texas, even though there were no case numbers assigned to their facilities. Complainant stated S1’s emails where she carbon copied her male peers and her writing in all caps gave off the impression Complainant was in trouble. Additionally, S1 often criticized her for not making her budget work hours even though she explained to S1 that she can make earned work hours but not budgeted work hours. 2020003304 4 Complainant averred when she asked S1 for assistance, S1 would not respond, as was the case on July 23, 2019, when she asked for help regarding a possible hostile work environment charge in the office and on September 3, 2019, when she needed S1’s help with maintenance after she was unable to get maintenance to remove or repair eight damaged cluster mailboxes. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final Agency decision (FAD). In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to show that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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). Therefore, 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 classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Assuming arguendo that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. S1 averred that performance at Pflugerville deteriorated greatly while Complainant had been Postmaster, which is why she has had to quickly intervene due to the unit’s performance issues. S1 stated her actions were done in an attempt to coach and mentor Complainant. 2020003304 5 As a delivery service manager, S1 was required to ensure her units and operations maintained their efficiencies and ensure Agency guidelines were met. S1 stated Complainant should expect to be supervised by the person (S1) she reports to directly. For example, with respect to S1 moving into the supervisor office and making changes to the Pflugerville Post Office, S1 cleaned out the supervisor office so she could have an office when she worked from Pflugerville. She stated she advised the supervisor to review the items she placed into a cart and clean it up. S1 confirmed she made changes to the post office staff. The Postmaster in Round Rock, Texas, stated S1 would move her office into post offices that were having issues and struggling, and had previously done so in Round Rock and Georgetown. CW1 stated that he only saw cosmetic changes to the Pflugerville Post Office and there were no major process changes that occurred. Regarding Complainant’s assertion that she was placed on a PIP, the record does not contain any evidence that Complainant was placed on a PIP. S1 stated she sent Complainant a form with performance indicators for Complainant to return weekly, to try and improve the unit’s performance. S1 explained it was a way to communicate weekly with Complainant and was not part of a PIP. Regarding S1 speaking to Complainant in a derogatory and demeaning manner, CW1 supported Complainant’s assertions, stating that every week S1 speaks to Complainant in a derogatory and demeaning manner on the weekly teleconference. However, CW1 did not provide any details or examples. CW1 also confirmed S1 called Complainant paranoid, as detailed above. He later told S1 he did not understand why she said that to Complainant and that there were other ways to communicate with Complainant. S1 explained she and Complainant were discussing unit performance when Complainant started to make hostile and snide remarks. S1 explained Complainant was taking her statements out of context and told Complainant she was just being paranoid. When S1 was unable to deescalate the situation, she asked Complainant to modify and stop her continued insubordinate behavior. Since that encounter, S1 stated she has since tried out different management styles with Complainant, with the goal of getting positive results from Complainant. With respect to S1 not including Complainant in career development meeting and removing her from ELD projects, S1 stated no one was removed from the ELD team, and that everyone remained on the team and received weekly telecom invites. S1 recalled Complainant failed to attend most ELD telecoms and eventually stopped responding. S1 stated she asked Complainant about getting involved with the ELD project, but that Complainant was unresponsive. S1 denied excluding Complainant in the instructions for the July 4th operation. S1 explained the instructions were given on a telecom where all of S1’s offices were advised to coordinate together and hub from Round Rock, and Complainant failed to follow the instructions. She noted Complainant has a habit of not paying attention to her calendar or invites and must be regularly reminded to log into the weekly telecom meetings. S1 tried to notify her staff as early as possible when information for scheduled telecoms was available. 2020003304 6 S1 did not recall the incident on July 2, 2019, where Complainant received late instructions to attend and present at a leadership telecom. However, S1 explained it was rare to have one of her units with poor performance have to report to the entire district. S1 did recall Complainant was once asked to report out regarding her unit’s poor safety and accident scores. With respect to the October 23, 2019 teleconference regarding the leave and return times for rural carriers, S1 did not remember singling out Complainant for performance issues on the teleconference. S1 explained that, regarding Complainant’s request for assistance with a possible hostile work environment charge in her post office, S1 contacted the Human Resources department who advised Complainant she needed to handle the complaints in her office and address it administratively. Regarding the September 3, 2019, maintenance request, S1 stated she has helped Complainant address multiple maintenance issues and escalate them to a higher level. The Commission concludes that Complainant has not shown she was subjected to a hostile work environment. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds Complainant was not subjected to a hostile work environment, discrimination or reprisal. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to 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. 2020003304 7 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. 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. 2020003304 8 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 7, 2021 Date