[Redacted], Janee S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal Nos. 2019005882, and, 2020000436 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janee S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal Nos. 2019005882 and 2020000436 Agency Nos. 1E-641-0045-17 and 1E-641-0031-18 DECISION On August 5, 2019, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 3, 2019 and July 8, 2019, final decisions concerning her equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 consolidates the appeals and AFFIRMS the Agency’s final decisions. ISSUES PRESENTED The issue presented herein is whether the Agency properly determined that Complainant failed to establish that she was subjected to harassment based on her race, sex, color, disability, age, and prior protected EEO activity as alleged in her two EEO complaints. 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. 2019005882 & 2020000436 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Supervisor at the Agency’s Distribution Operations (SDO), Processing and Distribution Center (P&DC) in Kansas City, Missouri. On January 5, 2018, and on July 27, 2018, Complainant filed EEO complaints alleging that the Agency discriminated against her on the bases of race (African- American), sex (female), color (Black), disability (physical), age (59), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 as set forth below. In Agency No. 1E-641-0045-17, Complainant alleged that she was subjected to discriminatory harassment beginning in July 2017 and ongoing based on race (African American/black), disability (physical) and retaliation (instant complaint) in that: 3. from July 2017 through September 2017, Complainant’s medical restrictions were not honored;2 4. on August 18 through 29, 2017, false information was entered into the timekeeping system and Complainant’s leave was rarely entered correctly on the schedule; 5. on September 25, 2017, Complainant was denied a scheduled sick day to attend a funeral; 6. on September 19, 2017, Complainant’s “Kaizen” project was taken away from her, she was forced into a new supervisor position, and her scheduled days off were changed without any prior notice; 7. on September 25, 2017, Complainant was issued a Letter of Warning (LOW); and 8. on November 27, 2017, Complainant received a Proposed Letter of Warning in Lieu of a 7-Day Suspension. In Agency No. 1E-641-0031-18, Complainant alleged that she was subjected to a hostile work environment/discriminatory harassment based on race (African American), color (black), sex (female), age (59) and retaliation (prior EEO Activity) when: 9. on multiple dates from October 1, 2017, through May 5, 2018, Complainant was not allowed to record her extra straight time using her timecard;3 2 The Agency noted that initially, the complaint included two additional allegations. However, in accordance with 29 C.F.R. §1614.107, on January 23, 2018, those allegations were dismissed for failure to state a claim due to bringing a collateral attack on the proceedings of another forum. 2019005882 & 2020000436 3 10. on dates to be specified, Complainant's manager stood very close to her and made multiple, inappropriate, sexual comments to her;4 11. on March 5, 2018, Complainant was issued a Proposed LOW in Lieu of a 7-Day Suspension for Failure to Properly Perform the Duties of her Position and for Failure to Follow Instructions; 12. on March 24, 2018, Complainant's supervisor sent her a defamatory email accusing her of unscheduled absences and working unauthorized overtime; 13. on April 12, 2018, Complainant was issued a Proposed Letter of Warning in Lieu of a 14- Day Suspension for Failure to Properly Perform the Duties of her Position; 14. on or around April 24, 2018, Complainant was forced to perform the job of two Supervisors and not allowed extra straight time; 15. on dates to be specified, Complainant was denied promotional opportunities; and 16. on April 27, 2018, management gave Complainant a negative review.5 The complaints were accepted for investigation. The investigations provided the following information. 3 We note that we renumbered the claims alleged in Agency No. 1E-641-0031-18. 4 The Agency noted that Complainant provided timeframes for this claim, basically September 2017 to April 2018, however only provided one specific date, as May 9, 2018. 5 On November 25, 2019, Complainant filed a Civil Action (No. 4:19CV948) in the United States District Court for the U.S. District Court for the Western District of Missouri, Kansas. The record discloses that the claims raised therein are similar to two of the claims raised in in the instant complaint. Claim 8 (LOW) and claim 15 (denial of promotional opportunities) are covered by the civil action. Therefore, we dismiss these claims pursuant to the Commission’s regulations at 29 C.F.R. § 1614.409 which provides that the filing of a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the identified EEO complaints under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep’t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). 2019005882 & 2020000436 4 In claim 3, Complainant asserted that she was medically restricted to only performing duties while sitting; and that five RMOs, RMO1, RMO2, RMO3, RMO4, and RMO5 failed to honor those restrictions until Complainant received a modified work assignment which was only a month before she was released to full duty. Complainant stated that when she gave documentation for her medical restrictions to RMO1, he just filed the documents and did not honor them. Complainant added that her doctor refused to let her go back to work until Complainant saw an orthopedic specialist. Complainant noted that she could not get an appointment; and that she again notified the RMOs about her restrictions and the modified work assignment form that needed to be filled out. Complainant alleged that on July 5, 2017, RMO1 told her that she should go to her desk on the workroom floor or go home without pay. Complainant added that she could not stay at work for that day and the day after. Complainant identified a Caucasian coworker (C1) who, Complainant asserted, was injured on the job but was allowed to sit in the office her entire tour working on the Tray Management System (TMS). Complainant alleged that she, however, was forced out on the workroom floor; and that she was moved to the third floor. Complainant added that a second coworker (C2), who was black, was allowed to sit in the SDO's office for several months working on attendance, even though C2’s injury was not job related and C2 was not forced to work on the workroom floor. Complainant also stated that she could not supervise the whole floor by sitting; and that she had a reputation as the SDO that sat all the time, indicating that she sometimes worked outside her restrictions for that reason. RMO1 explained that Complainant signed a modified job offer on July 5, 2017; and that she was briefed on not breaking her restrictions. RMO1 also explained that the job offer gave Complainant eight hours of work within her restrictions, but that it was Complainant’s responsibility to remain within her restrictions. RMO1 asserted that he told Complainant that she could not be in a wheelchair on the workroom floor; and that while Complainant told him that she would not walk on the workroom floor, that was not what her restrictions indicated. RMO1 indicated that Complainant was told that she needed to provide new restrictions if she could not walk on the workroom floor; and that, to his knowledge, no such restrictions were ever provided. RMO1 noted that when Complainant was moved to the third floor, nine other SDOs were moved at the same time; and that on the third floor, Complainant worked with another SDO which gave her more of an opportunity to sit on the SDO platform. RMO1 stated that he did not receive any complaints from Complainant about her medical restrictions not being honored. RMO1 asserted that Complainant's protected classes were not factors. The other RMOs provided supporting testimony, asserting that Complainant was not treated less favorably than her coworkers; and that it was Complainant herself who sometimes did not work within her restrictions. RMO2 added that when Complainant returned to work, she was using a wheelchair on the workroom floor, which was not allowed and had never been allowed. RMO2 asserted that based on Complainant's restrictions of July 3, 2017, she could walk up to three hours per day and was not required to use a wheelchair, so she was sent home because she was using a wheelchair. 2019005882 & 2020000436 5 RMO2 added that Complainant then stated that she could not walk on the tiled workroom floor, so she was paid and told to bring in new documentation stating that she could not walk on the tiled floor, which she never did. RMO3 also stated that Complainant had been assigned to the Counseling At Risk Employees (CARE) program as an accommodation to honor her restrictions. As to claim 4, Complainant alleged that RMO1, along with two other officials, did not correctly enter her timekeeping information when Complainant’s Office of Workers Compensation Program (OWCP) Family Medical Leave Act (FMLA) leave was entered as Sick Leave (SL). Complainant alleged that the incorrect leave entry was used against her in a LOW that was issued in lieu of a 7-day Suspension, since FMLA protected leave cannot be used in a disciplinary proceeding. Complainant asserted that even though she told RMO1 and RMO4 about the incorrect leave entries, letting them know that pay adjustments needed to be made, RMO1 never met with her to discuss the matter; and that he never checked the timekeeping system to ensure leave was entered correctly or corrected the errors. Complainant asserted that she was not the only person for whom RMO1 had incorrectly entered leave, letting the auto clock rings stay as if the employee was at work. Complainant alleged that a third coworker (C3), who was Caucasian/Mexican, was shown to be at work when C3 was on vacation over a two-days period. RMO1 stated that Complainant was in the room with him when he entered her leave request into the system; and that he entered FMLA-covered SL for her. RMO1 stated that from May 2017, Complainant's leave was entered as workers' compensation, but that the entry was denied by Human Resources (HR) because Complainant did not yet have a valid workers' compensation claim. RMO1 indicated that he correctly entered all Executive Administrative Schedule (EAS) leave; and that only HR could send back advanced SL. RMO1 stated that, as far as he was aware, all the problems with Complainant's leave records had been addressed; and that her protected classes were not factors. RMO4 stated that Complainant's absence analysis records shows that she was on unscheduled FMLA-protected SL from August 18-31, 2017. RMO4 asserted that she started doing Complainant’s schedule around the end of August 2017; and that Complainant had some annual and bereavement leave during that time period. RMO4 contended that Complainant never checked her schedule or called in to any manager about her schedule while she was on leave; and that like other employees, it was Complainant's responsibility to check her schedule weekly. In claim 5, Complainant asserted that she verbally requested SL; and that she was asked to fill a Request for or Notification of Absence form. Complainant alleged that days before her requested absence, RMO4 and RMO5 told her that her leave had been denied because the death, the incident for which Complainant would be absent, involved her cousin, which was not covered under bereavement leave. Complainant asserted that she then asked for a day of SL and that was also denied. Complainant stated that she then asked if she could have a few hours of leave to attend the service, and that was denied too. 2019005882 & 2020000436 6 Complainant admitted that she knew the death of her cousin did not qualify for bereavement leave, and that was why she had requested advanced SL for her absence. Complainant asserted that since she had requested SL in advance, the request should have been granted. Complainant contended that management is supposed to approve leave if a leave slip is handed to them. Complainant alleged that a male coworker (C4), who was Caucasian, was allowed to take unscheduled leave for his nephew's funeral. RMO4, affirmed by RMO5, stated that Complainant had informed her about a person not related but who was like a brother or nephew to her who had passed away. RMO4 asserted that Complainant told RMO4 that Complainant wanted to use bereavement leave for the absence; and that RMO4 told Complainant to submit a PS Form 3971, but that the person who passed away had to fall within the guidelines of bereavement leave for Complainant to be entitled to such leave. RMO4 noted that she did not receive any further request from Complainant regarding this matter, so she assumed that the funeral fell on one of Complainant's nonscheduled days or that Complainant called in and used another type of leave. The RMOs asserted that Complainant’s protected classes were not factors. Complainant alleged that when she returned to work from her leave, as stated in claim 6, RMO4 yelled at her and asked why Complainant was not at her duty station. Complainant stated that she provided an explanation to RMO4; and that as she reached for a binder regarding her Kaizen project, RMO4 told her to give the binder to RMO4 and RMO4 would finish the project, as Complainant had already missed one deadline by failing to complete the CARE project by the required deadline. Complainant asserted that RMO4 told her that RMO4 did not have to give Complainant advance notice for taking away the Kaizen project; and that RMO4 could do what RMO4 wanted to do because RMO4 was the manager. Complainant alleged that RMO4's taking away of her Kaizen project was threatening because completing the Green Belt Certification, associated with the project, is part of the EAS Leadership Development Program that Complainant was in; and that completing the Kaizen project was necessary to receive the certification. Complainant alleged that RMO4 also moved her to the third floor in a different supervisor position without giving Complainant a reason, and told Complainant that Complainant would run the operation there from the supervisor's platform. Complainant alleged that she should not have been moved without proper notice and an explanation for the move. She also alleged that her days off were changed. RMO4 asserted that she did not take Complainant's Kaizen project away from her, denying awareness of the alleged incident. RMO4 acknowledged that she moved Complainant to the third floor; and that Complainant’s days off would be different while Complainant was out on leave, but that the change was listed on the schedule and Complainant was notified of the changes in person. RMO4 asserted that when Complainant questioned why her days off were changed, RMO4 told Complainant that her days off were set to match the other SDO who had Sundays and Mondays off; and that other EAS employees also had their days off changed. 2019005882 & 2020000436 7 RMO4 asserted Complainant’s days off would be changed since she had been assigned to the third floor; and that Complainant's protected classes were not factors. The other RMOs asserted that nine other SDOs were also moved at the same time as Complainant. In claim 7, Complainant asserted that RMO1 issued her the LOW; and that a pre-disciplinary investigation (PDI) was conducted. Complainant alleged that not only did management not make her aware of any performance deficiencies, but that she had received incentive awards in 2016 and 2017. Complainant asserted that the LOW stated that she was informed that she must complete the CARE program before she went on leave for her surgery; and that she failed to do so. Complainant contended that due to scheduling conflicts, she was not assigned to complete the program until later. Complainant admitted that she stated she would come in to work on the CARE project and failed to do so. Complainant concluded that she did not consider her actions to amount to inappropriate conduct or failure to complete her project in a timely manner. Complainant alleged that RMO1 gave a fourth coworker (C4), who was Caucasian, an official instruction to complete a project; and that C4 went over RMO1's head to RMO3 and stated that she was not doing anything until she saw a Standard Operating Procedure (SOP) because RMO1 did not have a clue as to what needed to be done. Complainant asserted that C4 was not written up for not following RMO1’s orders. RMO1 acknowledged that he decided to issue the LOW to Complainant based on the PDI, his notes, and the reasons set forth in the LOW. RMO1 noted that he spoke to RMO3 and RMO4 before issuing the decision, but that it was his decision to issue the LOW. RMO1 asserted that Complainant's protected classes were not factors. RMO4 added that one of Complainant’s coworkers (C5), who was Caucasian, was given discipline for failure to perform the duties of his position and failure to follow instructions. Regarding claim 9, Complainant alleged that she was not allowed to record her extra straight time using her timecard to complete her supervisory administrative duties and when she did, she received an email the next day indicating she was not authorized to do so. Complainant alleged that tour three (T3) Supervisors were allowed to record straight time, contending that other Supervisors on T1 and T2 were recording straight time to get paid and they were not running the workroom floor. Complainant indicated that a sixth supervisor (RMO6) had approved a coworker (C7) to work 12-hours a day; and that all C7 did was paperwork after 15:50pm and stand around talking to RMO6 even though RMO6 was not the Manager, Distribution Operations (MDO) for C7’s tour. Complainant identified nine comparator employees, including C7 and two managers, who she alleged were allowed to record straight time using their timecards. Complainant indicated her belief that her race was a factor because it was RMO4, a white manager, who gave the instruction; that others were allowed to use their time cards; and that RMO6 just followed RMO4’s instructions. Complainant stated that a seventh supervisor (RMO7) acted on his own and instructed her not to use her timecard because RMO7 could not have his way with her sexually. 2019005882 & 2020000436 8 Complainant asserted that her color was a factor because RMO4 and RMO6 were Caucasians. Complainant stated that her sex was a factor because in every area where she worked, she was limited and/or not able to use extra time at all. Complainant contended that her age was a factor because she was 59 at the time; and that her EEO activity was a factor because RMO4 informed her that management was tired of Complainant and all the paperwork she generated. RMO6, who was in an acting Manager position at the time, denied Complainant's allegation. RMO6 stated that Complainant was very unorganized; did not complete her work in a timely manner; and was working additional hours for those reasons. RMO6 asserted that he told Complainant that if she worked, she was to clock her time but needed to justify it. RMO6 asserted that Complainant was never told not to use her timecard; and that all employees used their time cards to clock extra time, including RMO6 himself. RMO7, Complainant’s supervisor, explained that the instructions for EAS employees to record additional straight time hours is that they must have a valid reason for staying over to work additional hours. Record evidence indicated that Complainant used extra straight time as did all of her peers. As to claim 10, Complainant alleged that RMO7 stood very close to her and made multiple, inappropriate, sexual comments to her. Complainant alleged that RMO7 called her “Baby” or “B;” and that he stood behind her on the Supervisor's platform in close proximity watching her work and breathing down her neck. Complainant also alleged that RMO7 spoke to her in a derogatory tone, was in her face twenty times per day for no reason, and made advances towards her. Complainant added that RMO7 spoke to her about a former supervisor, making inappropriate statements about that supervisor. Complainant alleged that RMO7 also told her that he would make sure she went back to craft, indicating that RMO7 threatened her because she refused his sexual advances. Complainant asserted that she reported the alleged incidents and actions to RMO3 in a meeting. RMO7 denied all of Complainant’s allegations, asserting that the alleged incidents and actions did not occur. RMO3 asserted that he did not recall any meeting as described by Complainant; and that he had no entries on his calendar or personal notes to support or document such a meeting. Other RMOs provided supporting testimony, asserting that Complainant did not report any incidents of sexual harassment; and that no one reported any such incident on her behalf. As to claim 11, Complainant alleged that she was issued a Proposed LOW in Lieu of a 7-Day Suspension for Failure to Properly Perform the Duties of her Position and for Failure to Follow Instructions. Complainant stated that she tried to provide RMO6 relevant information during an accident timeframe and he would not accept the information. Complainant asserted that RMO6 failed to provide investigation information to Complainant. RMO6 stated that it was his decision to issue Complainant the discipline, with RMO3’s concurrence. 2019005882 & 2020000436 9 RMO6 explained that an employee had an accident on his day off; and that on his return, neither Complainant nor another supervisor were at work, asserting that he ended up supervising Complainant's unit and doing his own job. RMO6 explained that the employee informed him that she had reported the accident; and that Complainant had done nothing about the report. RMO6 stated that he scheduled an investigative interview and instructed Complainant not to speak to anyone about the interview. RMO6 asserted that Complainant was irate and spoke to craft employees against RMO6’s instructions. RMO6 stated that Complainant was notified of the reason for the discipline as it was stated in the charge letter. He explained that Complainant disagreed with the reason because she felt that RMO6 was after her; and that Complainant stated she had notified another manager that she could not complete the accident report. Complainant alleged in claim 12 that her supervisor sent her a defamatory email accusing her of unscheduled absences and working unauthorized overtime. Complainant provided an email string between herself and RMO6 in support of her allegations. In the emails, Complainant requested to know about EAS staffing, to which RMO6 responded and also discussed Complainant’s unscheduled absences; and her inappropriate email requesting information about another supervisor's clock rings to review their attendance. Another set of emails indicated that Complainant had informed another manager of her intention to file a complaint against RMO6 regarding his response. RMO6 stated that he had sent Complainant several emails regarding her conduct, asserting that he did not believe that he sent a defamatory email; and that if he did, Complainant would have responded. RMO6 stated that he had sent many emails addressing deficiencies with the units and/or employees he managed, adding that any employee with poor attendance would be addressed accordingly. He asserted that Complainant’s protected classes were not factors. Regarding claim 13, Complainant alleged that she was issued a Proposed LOW in Lieu of a 14- Day Suspension for Failure to Properly Perform the Duties of her Position because one of her employees left the building. Complainant asserted that she was disciplined before she had an opportunity to discipline her employee; and that she was not aware of the issue prior to the investigative interview conducted by RMO7 regarding the matter. Complainant alleged that RMO7 was not scheduled to be the manager of her unit and he went over the head of the acting manager who was in charge. Complainant identified three comparator employees whom Complainant alleged did not receive discipline for failure to perform their duties when an employee they supervised left the building and parking lot. Complainant asserted that after she filed her EEO complaint, there was a push for supervisors to issue discipline but that was after the fact. Complainant admitted that five comparators were also issued discipline. Complainant reiterated her reasons for believing that her protected classes were factors, adding that she was not part of the old-boys network (Caucasian) nor did she have over 20 years of service. 2019005882 & 2020000436 10 RMO7 stated that he issued Complainant the alleged discipline for failure to monitor an employee who left the building, while on the clock, under Complainant's management. RMO7 explained that the reason for the issuance of the discipline was failure to correctly monitor the employee. RMO7 stated that Complainant’s protected classes were not factors. As to claim 14, Complainant alleged that she was forced to perform the job of two Supervisors due to abolished positions and reassignments. Complainant explained that she was left to supervise 68 employees, indicating that she was not allowed extra straight time to complete the additional duties. Complainant alleged that RMO7 informed her that she was responsible for everything but not allowed straight time pay to complete the responsibilities of two supervisors. RMO7 denied Complainant’s allegations, asserting that he did not schedule the supervisors in Complainant's tour and unit; and that he did not know how frequently there was an EAS vacancy requiring supervisors to assume more duties. RMO7 stated that he did not know what duties Complainant was supposed to complete; and that Complainant did not work additional hours that he knew of. RMO6 asserted that he was unaware of how many hours Complainant worked on the date at issue. He stated that Complainant complained about doing the work of two supervisors but he helped her complete duties on the floor so that she was not doing the work of two supervisors as alleged. He asserted that Complainant’s protected classes were not factors. The record reflected that Complainant worked 8 hours which included 4 hours of night differential on the date at issue. Complainant alleged, in claim 16, that management gave her a negative performance review, asserting that RMO7 was the first manager to write a negative paragraph which stated that Complainant was not engaged, did not know what superior performance was, and she needed to recognize poor performance. Complainant questioned RMO7’s ability to evaluate her performance, indicating that he was away for three weeks about a month into supervising her; and that RMO7 did not manage her for three months. RMO7 stated that he gave Complainant the mid-year performance review, noting that she was not engaged, did not know what superior performance was, and Complainant needed to recognize poor performance. RMO7 asserted that he had not reviewed Complainant’s performance in the past; and that he did not know what her ratings were. RMO7 stated that employees were not rated, but they were told what they needed to improve upon to reach the unit goals. RMO7 asserted that many of the reviews simply stated what needed to be worked on for growth and no one, including Complainant, received a negative review. He stated that Complainant did not appeal her rating, asserting that her protected classes were not factors. 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). 2019005882 & 2020000436 11 Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. CONTENTIONS ON APPEAL In her Appeal Letters, among other things, Complainant reiterates her allegations, stating that the Agency failed to fully investigate her claims because RMO7 was not interviewed for claim 9. Complainant states that the FAD was flawed. In its Appeal Brief, among other things, the Agency reiterates its explanations, asserting that Complainant failed to present any facts that would alter the legal analysis applicable to her claims; and that she failed to identify any flaws in the FAD for her second complaint. The Agency asks that the Commission uphold its FADs. 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 Failure to Accommodate - Claim 3 In a reasonable accommodation case, Complainant may establish disability discrimination by showing that: (1) she is an individual with a disability as defined in 29 C.F.R. section 1614.203 (a) (1); (2) she is a "qualified" individual with a disability as defined in 29 C.F.R. section 1614.203 (a) (6); and (3) the agency took an adverse action against her, more specifically, that the Agency failed to accommodate her disability. Id. Here, assuming Complainant is an individual with disability, she could perform her job duties within limited walking restrictions. However, record evidence reflects that Complainant’s restrictions were honored; and RMO1 stated that it was Complainant who did not want to work within her restrictions. RMO1 also explained that the Agency informed Complainant that she could work outside of her restrictions if she provided updated medical information, which Complainant failed to do. 2019005882 & 2020000436 12 Therefore, Complainant has not demonstrated how she was forced to work outside of her limitations in this case; and Complainant’s concern about her reputation is not a basis for finding that the Agency failed to accommodate Complainant or to honor her restrictions. Complainant’s references to C1 and C2 are also irrelevant because there is no evidence that either of the coworkers were allowed privileges that Complainant was denied or that their restrictions were the same as Complainant’s. Disparate Treatment To prevail in a disparate treatment claim, a 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 initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. 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). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on race, color, age, disability, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Regarding Claim 4, the leave entry and schedule change, RMO1 stated that he correctly entered Complainant’s FMLA leave request in her presence; and that the other leave request for Workers Compensation was denied by HR. Both RMO1 and RMO4 also stated that Complainant would have been aware of any changes to her schedule had Complainant exercised her responsibility to check while she was out on leave. Complainant did not refute these explanations; and her allegations that another coworker’s leave was also entered incorrectly only indicates that discrimination did not occur. Regarding the leave request in Claim 5, RMO4, affirmed by RMO5, stated that Complainant was not entitled to bereavement leave because the person for whom she needed the absence was not related to her. Complainant herself affirmed this fact but alleged that her request for a few hours of absence, in the alternative, was denied. However, the RMOs stated that Complainant did not submit the form required for her alternative leave request. Complainant did not refute this statement; and allowing C4 to take leave for his nephew’s funeral does not demonstrate that discrimination occurred because C4’s situation is different from that of Complainant who wanted to take leave for an unrelated person’s passing. 2019005882 & 2020000436 13 Regarding Claim 6, RMO4 denied taking away Complainant’s Kaizin project or yelling at her. Complainant did not refute this denial; and record evidence indicates that she suffered no adverse employment action as Complainant completed the project and received her Green Belt certification. Moreover, RMO4 asserted that Complainant was notified about her move to the third floor; and that Complainant’s time off would change as a result of the move. Complainant did not refute this explanation; and she did not demonstrate that discrimination occurred because the RMOs asserted, and Complainant did not dispute their assertions, that nine other employees were also moved at the same time. Regarding Claim 7, RMO1 acknowledged issuing the LOW to Complainant for failing to complete the CARE project as she had said she would. Complainant herself admitted this fact; and she did not dispute that a Caucasian male employee was similarly issued discipline for failure to perform the duties of his position and failure to follow instructions. Therefore, Complainant did not show that discrimination occurred or that her protected classes were factors in any of the alleged management actions. Regarding Claim 9 and the recording of straight time, RMO6 explained that Complainant was not told she could not use her time card, or record straight time when she was asked to perform extra work, she just had to provide justification. Complainant did not refute this explanation; and her assertions that other coworkers were allowed to record straight time and use their timecards is refuted by record evidence indicating that Complainant used extra straight time as did all of her peers. Importantly, that RMO4, a white manager, gave instructions (as Complainant indicated) that appear to have been equally applicable to all employees does not prove discrimination; and there is no evidence that Complainant’s other protected factors played a role in the alleged management actions. Moreover, Complainant’s contention that the FAD in this complaint is flawed because RMO7 was not interviewed is not supported by record evidence as RMO7 provided testimony regarding instructions for EAS employees to record additional straight time. Notably, RMO7 also provided supporting testimony where relevant in the FAD. Regarding the discipline Complainant received in Claim 11, RMO6 explained that he issued the proposed LOW because Complainant failed to timely submit an accident report like other supervisors were required to do. Complainant presented no evidence that this action was based on any of her protected classes or that it was unjustified; and RMO6’s failure to provide investigation information to Complainant is no such evidence. Likewise, Complainant did not demonstrate that the proposed LOW she received in Claim 13 when her employee left the building was based on her protected classes. Rather, RMO7 explained that he issued the discipline to Complainant for failure to correctly monitor a subordinate. Complainant’s assertion that she was disciplined before she had an opportunity to discipline the employee does not evidence discrimination; and Complainant did not refute RMO7’s statement that other supervisors received discipline for similar infractions. 2019005882 & 2020000436 14 Regarding Claim 14 and the extra hours worked, RMO6 asserted that he helped Complainant complete duties on the floor when she complained, indicating that she was not doing the work of two supervisors as alleged. Complainant did not refute this assertion; and record evidence reflects that Complainant worked 8 hours which included 4 hours of night differential on the date at issue, indicating that Complainant did receive compensation for additional hours worked. Regarding Claim 16 and the negative review comments, RMO7 asserted that he did identify for Complainant performance areas needing improvement; and that no one, including Complainant, received a negative review. In January B. v. Dep’t of the Navy, EEOC Appeal No. 0120142872 (Dec. 18, 2015), the Commission stated that proof of pretext includes evidence of discriminatory statements or past personal treatment attributable to the named managers, unequal application of agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. We find no such evidence in either 2019005882, the first complaint or 2020000436, the second complaint. Neither did Complainant cite any ageist, racist or other prohibited language used by any of the RMOs toward her. Therefore, without more, Complainant’s disparate treatment allegations fail. Sexual Harassment Complainant alleged in Claim 10 that RMO7 subjected her to sexual harassment that included calling her “Baby” or “B;” and that he stood in close proximity watching her work and breathing down her neck. Complainant may establish a violation of Title VII by demonstrating that she was subjected to sexual harassment that was severe or pervasive enough to create a hostile work environment. Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986). To establish the existence of sexual harassment based on a hostile work environment, Complainant would have to show: that she belongs to a protected gender group; that she was subjected to unwelcome conduct of a sexual nature based on her sex; that the harassment created an intimidating, hostile or offensive work environment; and that the agency knew or should have known of the harassment, but took no prompt remedial action. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, Complainant is female; and the alleged perpetrator is a male supervisor who should be held to a higher standard of behavior. However, it is Complainant’s word against RMO7’s denial of Complainant’s allegations, and without additional witnesses, we find the evidence in equipoise. Moreover, the Commission has held that, in general, unless the conduct complained of is very severe, a single incident will not be regarded as discriminatory treatment. Taylor v. Dep’t of the Army, EEOC Appeal No. 01942699 (Mar. 7, 1996); Policy Guidance On Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 at 16 (Mar. 19, 1990) citing Barrett v. Omaha Nat’l Bank, 584 F. Supp. 22, 35 (D. Neb. 1983), aff’d 726 F.2d 424 (8th Cir. 1984). 2019005882 & 2020000436 15 In the instant complaint, while it is understandable that there are often no witnesses to sexual harassment, the alleged one-time occurrence on May 9, 2018, (as the Agency noted) was never reported to management by Complainant or by anyone on her behalf. Therefore, we find no basis to impute liability to the Agency; and Complainant’s sexual harassment claims fail Other Harassment We also find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claims of a hostile work environment (and implied retaliatory harassment) must fail because even though Complainant belongs to protected classes, she has not described any severe or pervasive verbal or physical conduct that would support a finding of hostile work environment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Also, to prevail in a retaliatory harassment claim, a complainant must show that a reasonable person would have found the challenged action materially adverse, i.e., an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination in the future. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). The record is devoid of evidence of any such materially adverse action in the instant Complaint; and the allegedly defamatory emails presented by Complainant in Claim 12 (involving RMO6’s attempt at addressing Complainant’s poor attendance) do not support a different outcome. 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 decisions in the two instant Complaints. 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. 2019005882 & 2020000436 16 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. 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. 2019005882 & 2020000436 17 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 May 19, 2021 Date