[Redacted], Gilda M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jul 22, 2021

Appeal No. 2020002818 (E.E.O.C. Jul. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilda M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002818 Agency No. 4F-926-0129-19 DECISION On February 15, 2020, 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 January 31, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination based on her race, color, and in reprisal for her prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Customer Services at the Agency’s facility in Montebello, California. 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. 2020002818 2 On August 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), color (Black), and reprisal for prior protected EEO activity under when: 1. on October 12, 2018, Complainant was issued a Proposed Letter of Warning in Lieu of a Seven-Day Suspension; 2. on May 6, 2019, Complainant was issued a Proposed Letter of Warning in Lieu of Seven-Day Suspension; 3. on July 5, 2019, Complainant was directed to modify her work hours on a Form 1260 to remove overtime worked; and 4. beginning on May 22, 2019, Complainant was directed to work weekends and her coworker was never directed to work weekends. On September 6, 2019, the Agency issued a Partial Acceptance and Dismissal notice to Complainant. The Agency dismissed claim 1.2 The Agency accepted claims 2 to 4 for investigation. We note that the EEO Investigator asked Complainant to provide an affidavit, but Complainant failed to do so.3 The investigative record reflects the following pertinent matters relating to the subject claims. On May 6, 2019, Complainant was issued a Proposed Letter of Warning (LOW) in Lieu of Seven-Day Suspension. The Postmaster (Hispanic, Brown, unknown EEO activity) stated that she issued the LOW with the Manager of Customer Service (Manager) (Creo/Cherokee/Greek, Caramel-tone, unknown EEO activity) concurring on the decision. The Postmaster issued the LOW based on Complainant’s unacceptable conduct with a customer. The Postmaster noted that Complainant was previously issued discipline for a similar issue with the same customer. The Manager stated that Complainant had taken a picture of the customer, which provoked an escalated situation in front of other customers. Complainant asserted that management made false accusations against her to purposefully discipline her. 2 As an initial matter, we note that the Commission has the discretion to review only those issues specifically raised in an appeal. Id. at Chap. 9, § IV.A.3. Complainant has not challenged the Agency's decision to procedurally dismiss claim 1. Accordingly, we will not address this claim on appeal. 3 Complainant did not provide information to the EEO Investigator’s affidavit request. Information for the Report of Investigation (ROI) was therefore obtained from the pre-complaint and/or formal complaint. The record indicates that the EEO Investigator sent Complainant an affidavit request on September 17, 2019. The tracking number indicated that the request was received on September 20, 2019, at Complainant’s address of record. 2020002818 3 On July 5, 2019, Complainant was directed to modify her work hours, from nine to eight hours, on a Form 1260 to remove the overtime hour she worked. The Postmaster asserted that Complainant was not authorized to work overtime. Therefore, she directed Complainant to modify her work hours for July 5, 2019. Complainant did not deny working unauthorized overtime. Complainant was provided straight time for the overage, but not at an overtime rate. Beginning on May 22, 2019, Complainant was directed to work weekends and her coworker was never directed to work weekends. Complainant asserted that she was always directed to work weekends. Complainant noted that her coworker (Mexican, unknown color, and EEO activity) was never directed to work weekends. The Postmaster asserted that she is responsible for scheduling. The Postmaster asked Complainant to work weekends based on Complainant’s rotating days off. The Postmaster denied making the schedules based on race, color, or EEO activity. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that despite being informed that she had a representative,4 her designated non-legal representative was never provided with the investigative file. Complainant asserts that she was unaware that her representative was never provided with the file. Complainant asserts that the only documentation that she received was the Agency’s final decision, which her representative also never received. Complainant’s appellate brief reiterates her arguments that she was subjected to discriminatory treatment based on her race, color, and in reprisal for her prior EEO activity.5 The Agency did not provide an appellate brief. 4 Complainant’s non-legal representative was first listed in the record on Complainant’s appeal documents. 5 We note that Complainant, on appeal, states that if the Agency requested for summary judgment, neither she nor her representative were aware of any such requests. Upon review, it appears to be in reference to another matter, Gilda M. v. U.S. Postal Serv., EEOC Appeal No. 2019004180 (Feb. 7, 2020), which was before an AJ at the time of her appeal. In Gilda M., the AJ issued a decision by summary judgment in favor of the Agency. Id. This argument does not seem related to the instant complaint. 2020002818 4 STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS Processing of Complaint We note that Complainant asserts on appeal that the Agency failed to mail documentation associated with her complaint to her representative. The record demonstrated that the Agency was not put on notice by Complainant that she had non-legal representation. In Complainant’s formal complaint, she noted that she was representing herself. There no indication in the record that Complainant had, at any time, informed the appropriate individuals that she had obtained representation in the instant matter. Accordingly, the Agency appropriately mailed documents and correspondence just to Complainant and at Complainant’s address of record. See EEO MD- 110 at Chapter 9, § V.I. (if noted, copies of all actions shall be mailed or delivered to the complainant’s representative with a copy to the complainant); see also EEO MD-110 at Chapter 9, § VIII.F. (explaining a complainant’s responsibility to inform the agency of a change of address and the possible consequences for not doing so). Based on the record, there is no indication that the Agency inappropriately processed Complainant’s complaint in any manner. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020002818 5 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, color, and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions and that Complainant did not show that the Agency’s reasons were pretext for discrimination. In claim 2, the Postmaster and Manager issued Complainant a Letter of Warning (LOW) on May 6, 2019, based on inappropriate conduct with a customer. Both officials noted that this was not the first incident of its kind and that the LOW was based on progressive discipline. Complainant asserted that management made false accusations against her to purposefully discipline her. Here, the record demonstrated that Complainant was subject to an investigative interview regarding the incident and the internal investigation determined that Complainant lacked candor in her responses. While Complainant asserted in her pre-complaint that the accusations were false, she failed to provide any evidence to counter the charge. Regarding claim 3 in which Complainant alleged that she was discriminatorily directed to modify her work hours, the record demonstrated that Complainant was not authorized to work overtime. Based on her unauthorized work, she was directed to modify the hours. Instead of receiving overtime, Complainant was provided with regular, straight pay at her normal hourly rate. Complainant provided no evidence to contradict the Postmaster’s statement. Lastly, in claim 4, Complainant asserted that, beginning on May 22, 2019, she was directed to work weekends while her coworker was never directed to work weekends. Again, in this matter, Complainant has failed to provide any evidence to support her contentions. The Postmaster asserted that Complainant’s schedule was based on Complainant’s rotating days off and her base schedule. Again, Complainant provided no evidence to contradict this statement. Therefore, upon review of the record, we find that Complainant failed to provide any evidence to establish that the Agency’s subjected her to discrimination or retaliation. 2020002818 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of 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. 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. 2020002818 7 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, Director Office of Federal Operations July 22, 2021 Date