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

Equal Employment Opportunity Commission

Jan 26, 2021

Appeal No. 2020003301 (E.E.O.C. Jan. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Goldie G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003301 Agency No. 4G-320-0193-19 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 March 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Services Supervisor, EAS-17 at the Agency’s Northside Station facility in Panama City, Florida. She stated she was the only Black supervisor in Panama City and the only supervisor labeled as "angry, aggressive, and unreasonable." According to Complainant, on September 20, 2018, she and a city carrier (CC) had a dispute about his request to work overtime. She said during the conversation, CC faked a fall behind her and hit her back and buttocks. She said she “jokingly” said to CC that if he had made her fall, she would have knocked him to the ground so he could see how it feels. 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. 2020003301 2 CC stated that he considered Complainant’s comment to be a threat. Witnesses confirmed that the exchange occurred. Both Complainant and CC reported the incident to management. On January 30, 2019, the Acting Customer Services Manager (ACSM) issued to Complainant a Notice of Proposed Letter of Warning (LOW) in Lieu of Fourteen (14) Day Time Off Suspension for unacceptable conduct. The Notice specified that Complainant, as a supervisor, had made an improper intimidating statement to a subordinate. The ACSM stated that a pre-disciplinary interview had been conducted with Complainant on November 7, 2018, and she acknowledged her awareness of the Postal policies against workplace harassment and violent and/or intimidating behavior. The ACSM also noted that the statements of three witnesses confirmed CC’s version. The Notice indicated that Complainant’s conduct had violated several Postal policies. On May 16, 2019, the Post Office Operations Manager, EAS-25 (POOM) issued a Letter of Decision upholding the January 30, 2019 Proposed LOW. On September 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on May 16, 2019, she was issued a Letter of Decision upholding the Proposed Letter of Warning (LOW) in Lieu of a 14-Day Suspension dated January 30, 2019. Complainant did not name the POOM as the discriminating official. After 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. With regard to Complainant’s claim that the LOW was issued because of retaliation, the Agency noted that Complainant had engaged in prior EEO activity when she made initial contact with an EEO specialist on June 3, 2016, in Case No. 48-320-0125-16; on February 27, 2017, in Case No. 48-320-0077-17; and on April 16, 2018, in Case No. 48-320-0123-18. The Agency also noted that Complainant did not allege that the ACSM was aware of her protected activity, and the ACSM denied any knowledge of it. As a result, the Agency concluded that Complainant was unable to establish a causal nexus between the LOW and her prior protected activity and thus did not establish a prima facie case of retaliation. With respect to Complainant’s claim that the LOW was the consequence of race and sex discrimination, the Agency found that Complainant failed to establish a prima facie case because she could not identify any similarly situated employees who were treated more favorably based on their race and/or sex. 2020003301 3 She also was unable to establish that management’s articulated legitimate, nondiscriminatory explanation for their actions was a pretext since she admitted to making the challenged statement to CC, albeit in jest. The Agency concluded that the evidence did not support a finding that Complainant was subjected to discrimination as alleged. This appeal followed. 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”). At the outset, the Commission will not entertain the arguments in Complainant’s brief because they raise matters beyond the scope of the complaint under review. We find that Complainant failed to establish a prima facie case of discrimination. Complainant was not able to identify any persons who engaged in similar conduct that were not disciplined and there is no evidence that the manager who issued the disciplinary letter was aware of her prior EEO activity. Further, we find that, even if she had established a prima facie case of discrimination, Complainant did not produce any evidence that management’s articulated reasons for issuing the discipline was pretextual. Accordingly, we find that Complainant has not proven she was subjected to discrimination by a preponderance of the evidence. Because we find that Complainant has failed to show that any action of the Agency was discriminatory, we also find that Complainant has not established that she was subjected to a discriminatory, hostile work environment. CONCLUSION The Commission AFFIRMS the Agency’s decision finding 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. 2020003301 4 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. 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. 2020003301 5 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 January 26, 2021 Date