[Redacted], Giselle W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 2021Appeal No. 2021000476 (E.E.O.C. Feb. 22, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Giselle W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000476 Agency No. 4K-220-0028-20 DECISION On October 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 24, 2020 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Manager, Customer Services at the Agency’s Sully Station Branch and Centreville Post Office in Centreville, Virginia. On March 18, 2020, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), and/or in reprisal for prior EEO activity (most recent prior case - Agency No. 4K-220-0046-19) when: 1. from April 9, 2019 and ongoing, she was given excess work assignments including Step 1 Designee and she was not provided with an adequate supervisory staff; 2. on March 3, 2010, she was issued a Letter of Warning; 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. 2021000476 2 3. she was mandated to send a text every evening, including her non-scheduled day on Saturday, when the last carrier returned to the office; 4. on May 10, 2020, her non-scheduled day, she received multiple phone calls at home from the Officer-in-Charge; and 5. on or about June 1, 2020, her request for leave was not granted.2 After the investigation of the formal complaint, Complainant 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 did not respond. In its September 24, 2020 final decision, the Agency found no discrimination based on the evidence developed during the investigation. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part 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). 2 The record reflects that claims 2 - 5 were later amended to the instant formal complaint. 2021000476 3 Here, we find that the responsible Agency official articulated legitimate, non-discriminatory reasons for the disputed actions as detailed below. Regarding claim 1, Complainant asserted that from April 9, 2019 and ongoing, she was given excess work assignments including Step 1 Designee, and that she was not provided with an adequate supervisory staff. The Postmaster, Centreville Post Office (Caucasian male) denied Complainant’s allegation that she was not provided with an adequate supervisory staff at the Sully Station when the Customer Services Supervisor [Supervisor 1] went on detail in February 2019. Specifically, the Postmaster explained that the Supervisor 1 was detailed because Complainant was not able to work with her. He noted that Complainant did not want Supervisor 1 back and that the office ran better without her. Complainant then wanted to hire a new supervisor but the OIC told her it was not possible to remove Supervisor 1 until she was awarded a different permanent position. At that time, Supervisor 1’s position was backfilled with 204B’s (acting supervisors). Furthermore, the Postmaster stated that he hired a new Form 50 permanent Customer Service and assigned her to Supervisor 1’s position and used a 204B as the other supervisor. The Postmaster noted that the Sully Station had two supervisors for more than six months, until the 204B informed the OIC that she could not work for Complainant anymore because of how she treated her. Thereafter, Complainant started using another 204B who had been in training. The Postmaster stated that he also sent another 204B to Complainant and “there were three supervisors at Complainant’s disposal to run the office at the Sully Station. The three were more than two earned by the station.” Regarding claim 2, Complainant alleged that on March 3, 2010, she was issued a Letter of Warning. The Officer-in-Charge (OIC) (Caucasian male) acknowledged issuing the Letter of Warning dated March 17, 2020, for “Unsatisfactory Performance.” The OIC noted that on March 2, 2020, the Manager Post Office Operations sent an email to all offices, including Sully Station, instructing management to give a service talk about seat belt usage and not leaving vehicles with the engine running. The OIC asserted that Complainant did not give the service talk as instructed. On the same day, the District Safety was conducting Driver Observations in the area and one carrier from Sully Station received negative observations for seat belt usage and leaving the vehicle with the engine running. OIC further stated that on March 4, 2020, he went to the Sully Station around 7:15 a.m. and notice the exit door “leading to the vestibule from the loading dock was blocked.” As a result, he sent Complainant an email asking her to unblock the exit door, and reminded Complainant that a blocked exit is an Occupational Safety and Health Administration (OHSA) violation. The OIC stated that at 9:51 a.m., the door was still blocked and he sent another email to Complainant to unlock the door. She responded with her reasons why the door should remain blocked. 2021000476 4 Finally, the OIC stated that at 12:52 p.m., he sent an email giving Complainant a direct order to unlock the exit door which she sent emails to the supervisors to unblock the door. Finally, the OIC stated that on March 3, 2020, he conducted an Investigative Interview with Complainant on March 3, 2020, concerning the March 2, 2020 incident, regarding safety talks. Complainant was asked if she gave the service talk, she asserted “I wasn’t instructed to give it. I did not give the service talk nor did my 204B and District Safety was in my office doing a Safety Review and then they notified that they would be going out on the street to do street observations.” The OIC further stated that on March 6, 2020, he sent an email to Complainant to report to his office for an Investigative Interview concerning her failure to follow instructions. He stated, however, Complainant did not report to his office and that Complainant did not notify him that she could not be able to attend to the Investigative Investigation. The record contains a copy of the February 17, 2020 Letter of Warning. Therein, the OIC determined that a Letter of Warning was appropriate because Complainant had worked for the Agency for thirty-one years and have been in management for sixteen years. The OIC stated that “ I considered that your years of service would have afforded you many opportunities to solidly understand and put into practice the Service’s needs, goals, and expectations…it is my hope that this Letter of Warning will impress upon you the seriousness of your failures and that such failures on your part do not continue.” Regarding claim 3, Complainant alleged that on an unspecified date, she was mandated to send a text every evening, including her non-scheduled day on Saturday, when the last carrier returned to the office. The OIC explained that as the OIC of Centreville Post Office “I need to know the carriers on the street projections and when the last carrier returned. I did not have a Postal issued cell phone to review my email nor do I have internet at home.” He further stated that he explained to Complainant reason for sending the text messages. Moreover, the OIC stated while Complainant “did not disagree, she just did not comply.” Regarding claim 4, Complainant claimed that on May 10, 2020, her non-scheduled day, she received multiple phone calls at home from the Officer-in-Charge. The OIC stated that he does not recall making multiple phone calls to Complainant at her home. Regarding claim 5, Complainant asserted that on or about June 1, 2020, her request for leave was not granted. Specifically, she stated she requested leave through email and also on her PS Form 3971 “Request for or Notification of Absence” because she worked 8.5 hours on her non-scheduled day and as an offset, she wanted to use her compensatory day off to rest. The OIC explained that the week prior to June 1, 2020, a positive COVID-19 case was reported in the Sully Branch. Sixteen carriers walked out and one carrier did not. 2021000476 5 The OIC stated at that time the Sully Branch only had one Scheme Training Clerk for 40 routes and the Clerk was quarantined because the clerk was exposed to COVID-19 from someone who lived with the clerk. OIC further stated that he does not recall if Complainant was provided a reason for not granting her compensatory time request but noted she did not disagree with the reason provided. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discrimination on any of the bases alleged or retaliatory animus for her prior EEO activity. Finally, to the extent that Complainant also offered these incidents in support of a discriminatory harassment claim, she again has simply provided no evidence to support her claim that her treatment was the result of her race, sex and prior protected activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We 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. 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). 2021000476 6 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. The court has the sole discretion to grant or deny these types of requests. 2021000476 7 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 22, 2021 Date Copy with citationCopy as parenthetical citation