[Redacted], Iesha P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020000821 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iesha P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000821 Hearing No. 430-2018-00024X Agency No. 4K-280-0068-17 DECISION On October 17, 2019, 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 September 20, 2019, final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Independence Carrier Annex in Charlotte, North Carolina. On April 10, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), disability (back sprain, foot sprain, wrist 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. 2020000821 2 sprain),2 and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. Since October 31, 2016, Complainant has been subjected to harassment; 2. On October 31, 2016, and January 17, 2017, Complainant’s Supervisor (S1: black, no claimed disability) gave Complainant duties outside of her medical restrictions; 3. On November 1, 2016, Complainant's transfer request to Brooklyn, New York, was denied; 4. Since February 22, 2017, through March 6, 2017, Complainant has not been paid correctly; 5. On February 22, 2017, through March 6, 2017, Complainant has been charged leave without pay, LWOP; 6. On February 22, 2017, Complainant was required to provide documentation for her light duty request, since management would not acknowledge her case filed with the Office of Workers Compensation Programs (OWCP); 7. February 22, 2017, through March 6, 2017, Complainant was only provided with 0.50 hours of work daily; 8. On March 29, 2017, Complainant's manager required her to submit medical documentation; and 9. On May 1, 2017, Complainant was issued a notice of removal. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 22, 2018 motion for a decision without a hearing and issued a decision by summary judgment on September 18, 2019, adopting the Agency’s motion as her own. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 2 For purposes of this decision the Commission assumes without finding that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2020000821 3 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. With regard to claim 2, Complainant’s supervisor averred that on October 31st she was unaware of any restrictions for Complainant and further averred that Complainant completed just six hours of work. 2020000821 4 Once Complainant notified S1 of her restrictions, S1 further averred, Complainant was only required to work eight hours, in accordance with those restrictions. With regard to claim 3, the Postmaster in Brooklyn, New York (PM: Caucasian, no claimed disability) and the December 8, 2016 rejection letter both stated that Complainant’s transfer was denied because of Complainant’s “unacceptable Safety Record and Attendance Record.” With regard to claim 4, Complainant admitted that the pay discrepancy was subsequently corrected, saying in her affidavit that: I did speak with [S1] on or around February 283, 2017 when I viewed my pay stub online and realized that I was not paid correctly. [S1] was surprised. She stated that she gave my approved 3971 [sic] to . . . the co- manager at this time in charge of timekeeping. A pay adjustment was made by [S1] which reflected in pay period 6. . . . I did receive a pay adjustment for pay period February 18, 2017 through March 3, 2017. With regard to claims 5, 6, and 7, an Agency Manager (M1: Caucasian, no claimed disability) and another Supervisor (S2: African-American, no claimed disability) averred that Agency management was not provided sufficient medical documentation to support Complainant’s light duty request. M1 averred that while Complainant provided documentation from her physician listing her medical restrictions: We never received valid medical documentation. As we received doctor's notes with potential restrictions, we worked with the employee informing her the need to provide proper required documentation with diagnosis, expected time to return to full duty and date of next appointment. None was provided. . . . All light duty requests require medical documentation to support the claim for a light duty assignment. . . . After [Complainant’s] Doctor’s note for limiting lifting to 2 1bs we had minimal work available. [Complainant] was again failing to provide sufficient medical documentation. M1 and S2 further indicated that they were under the impression that Complainant’s OWCP had been resolved prior to the dates in question and that Complainant “claimed that she had a valid OWCP case. She was instructed to complete a CA-7 if that was true.” With regard to claim 8, Complainant averred, “I do not believe anything discriminatory was done by management when / was required to submit medical documentation. I was always more than willing to submit medical documentation as needed, without any hesitation.” As such we find that Complainant has withdrawn this claim. With regard to claim 9, the removal notice states that Complainant was being removed based on a single charge of Failure to be Regular in Attendance/Failure to Follow Leave Requesting Procedures. The notice was dated May 1, 2017 and noted that Complainant had been absent from work from March 13, 2017 “to the present.” 3 According to the Report of Investigation, the correct date is February 22, not 28. 2020000821 5 The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to claims 4, and 8, Complainant essentially conceded that no adverse action and no discrimination occurred, respectively. With regard to the remaining claims, Complainant disagrees with the Agency’s articulated reasons for its actions, but on appeal has not addressed those articulated reasons nor shown them to be pretextual. With regard to claim 4, Complainant maintains that PM was relaying on erroneous leave information provided by her facility. Assuming such a claim to be true, that does not support a claim that the denial of her transfer was discriminatory. With regard to the remaining claims, Complainant’s disagreement with the Agency’s articulated reasons is insufficient to establish, by a preponderance of the evidence, that those reasons were pretextual, or that Agency officials were motivated by discriminatory animus against Complainant’s protected bases. Hostile Work Environment To establish a claim of hostile environment harassment, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 a protected basis - in this case, her race, disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was given duties outside of her medical restrictions, her transfer request was denied, she was not paid correctly, she was charged with LWOP, she was required to provide documentation for her light duty request, she was only provided with 0.50 hours of work daily, and she was issued a notice of removal, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., 2020000821 6 EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment: On January 9, 2017, March 6, 2017, and date(s) not provided, Complainant was spoken to in a loud and/or demeaning manner; on January 13, 2017, and March 6, 2017, Complainant was subjected to a pre disciplinary interview; and on January 13, 2017, during a meeting, Complainant's supervisor lunged toward her. Following a review of the record, we find that Complainant has not shown that the Agency’s alleged actions either involved or were based on her protected bases. As such, she cannot establish harassment in violation of Title VII or the Rehabilitation Act. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final order. 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 2020000821 7 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. 2020000821 8 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 July 12, 2021 Date