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

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020001897 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heidi B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020001897 Agency No. 4G-700-0078-19 DECISION Complainant timely 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 November 26, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented on appeal are (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination on the bases of sex, race, age, and reprisal; and (2) whether Complainant established that she was subjected to a hostile work environment based on her protected classes. 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. 2020001897 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) performing Mail Processing Clerk duties at the Agency’s Southfield Station in Shreveport, Louisiana. On March 19, 2019, Complainant contacted an EEO Counselor and filed an EEO complaint on May 23, 2019, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (46), and reprisal for prior protected EEO activity2 when: 1. On January 5, 7, and 12, 2019; February 2, 8, and 20, 2019; and March 12 and 15, 2019, she has been followed and/or observed while performing her duties; 2. On February 20, 22, and 28, 2019, and March 5, 7, 8, 11, 12, and 23, 2019, she has been spoken to in a loud and/or demeaning manner; 3. From February 22, 2019, through May 19, 2019, she has been bypassed from working overtime; and 4. On February 26 and 28, 2019; March 14, 15, 19, 20, 23, and 29, 2019; and April 4, 9, 10 and 16, 2019, she has been sent home prior to her scheduled end of her tour. On June 10, 2019, the Agency issued a partial acceptance and dismissal of Complainant’s complaint. Therein, the Agency dismissed Complainant’s claim that her request to see a union steward was denied, finding that it failed to state a claim. Following 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. The Agency initially found that Complainant did not establish a prima facie case of discrimination based on reprisal, as the identified management officials did not become aware of Complainant’s current EEO activity until July 2019 or later. The Agency additionally determined that Complainant did not establish a prima facie case of discrimination based on race, sex, or age because she did not show that a similarly situated individual not in her protected groups was treated more favorably than she under similar circumstances. The Agency noted that, while Complainant did identify two female African-American PSE employees who she believed were treated more favorably, one of these employees was trained to work window operation duties and Complainant worked more overtime hours than the other identified employee. 2 Complainant alleged that the instant EEO complaint constituted her protected EEO activity. 2020001897 3 The Agency nevertheless assumed that Complainant established a prima facie case of discrimination based on her protected classes, but found that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency further determined that Complainant did not show that those reasons were pretextual based on her protected classes. In so finding, the Agency noted that PSE overtime was assigned based on operational needs and that, after two new PSEs were hired in March 2019, they were fully staffed causing a reduction in needed overtime. The Agency additionally observed that there were only two instances where Complainant worked less than her scheduled five hours and she worked over five hours on many of the dates alleged. The Agency noted that the collective bargaining agreement provides that PSEs have no daily or weekly work hour guarantees, and that the only reason Complainant would have been sent home was due to a lack of work. The Agency further determined that Complainant did not establish that she was subjected to a hostile work environment based on her protected classes. In so finding, the Agency noted that Complainant did not show that the Agency was motivated by discriminatory or retaliatory animus and that its actions were not sufficiently severe or pervasive to rise to the level of a hostile work environment. CONTENTIONS ON APPEAL Neither party filed a brief on appeal. 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, 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 Disparate Treatment (Claims 3 and 4) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp, v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 2020001897 4 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on her sex, race, age, and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions regarding claims 3 and 4. The Station Manager specifically explained that PSE overtime was assigned based on operational needs and that, after two new PSEs were hired in March 2019, they were fully staffed causing a reduction in needed overtime. Report of Investigation (ROI) at 154. The Station Manager additionally explained that the collective bargaining agreement provides that PSEs should not work more than 8 hours per day, and that the only reason Complainant would have been sent home was due to a lack of work. Id. at 148, 151. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant asserts, among other things, that she was told to leave work early on a variety occasions even though there was work available that she could have performed. Complainant cites to two other PSE comparators who she asserts were allowed to longer hours than she: Comparator 1 (African- American, female, 49) and Comparator 2 (African-American, female, 26). Upon review, we find that Complainant has not established that the Agency’s legitimate, non- discriminatory reasons were pretextual based on her protected classes. We also find that Complainant did not show that the Agency was motivated by discriminatory or retaliatory animus. In so finding, we note that there is no dispute that Complainant was a PSE and therefore she was not in a career position. As such, Complainant was not guaranteed an 8-hour workday. While Complainant asserts that Comparator 1 and Comparator 2 were treated more favorably than she, there is no dispute that they were primarily not outside Complainant’s protected classes. ROI at 123-24. Although Comparator 2 was significantly younger than Complainant, there is simply no evidence that the Agency was motivated by discriminatory animus based on age in this case. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that, under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that she failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus with regard to claims 3-4. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 2020001897 5 With respect to claims 1 and 2, we find that Complainant has not proven sufficiently severe or pervasive events to show that she was subjected to a hostile work environment. Although Complainant's work environment may not have been ideal, we do not find that it was hostile and/or abusive based on Complainant's protected classes. We note that not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp’t Opportunity Comm’n., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents was motivated by discriminatory or retaliatory animus. As such, we find that Complainant has not established that she was subjected to a hostile work environment based on her protected classes. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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 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, 2020001897 6 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. 2020001897 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 June 17, 2021 Date