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

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021000318 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jillian B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021000318 Hearing No. 480-2018-00626X Agency No. 4F-927-0003-18 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 9, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant was employed as Health and Resources Management Specialist (EAS-16). However, Complainant was on a higher-level detail or temporary assignment to In-Plant Support as an Operations Support Specialist (EAS-17) at the Agency’s Santa Ana District in Industry, California. On October 30, 2017, Complainant returned to her position at Health and Resource Management (HRM). On November 17, 2017, Complainant filed a formal EEO complaint alleging discriminatory harassment by the Agency based on disability2 and in reprisal for prior EEO activity (Agency No. 4F-926-0085-16) when: 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. 2021000318 2 1. On July 20, 2017, she was harassed by a co-worker when she overheard the co- worker saying she wanted to get rid of him, and when Complainant told his manager, he did nothing. 2. On August 25, 2017, and other dates, she felt management put pressure on her to take a position that would violate her medical restrictions. 3. On August 31, 2017, her manager made comments to her about taking away positions which made her feel intimidated. 4. Beginning in September 2017, she was not permitted to take her laptop home as her co-workers were allowed to do, she was denied access to important software applications, and the laptop assigned to her was faulty, which making her job more difficult. 5. On September 11, 2017, a co-worker spoke with her about the co-worker who harassed her and she feels the co-worker did this to show support for the harasser. 6. From September 25, 2017 to October 27, 2017, someone tampered with templates she used to provide data reports and she feels the action was done intentionally, and when she told her manager, she stated that a co-worker knew about the matter but he did nothing. 7. On October 2, 2017, she was not invited to a training meeting. 8. On October 2, 2017, she was informed that she would not receive a salary increase/performance raise. 9. On October 12, 2017, a co-worker became aware of a machine problem which affected Complainant’s reports but did not tell her about it and she feels it was done intentionally. 10. On October 17, 2017, she was not accommodated per her medical restrictions when she was removed from her detail and sent to Tour 3. 11. On October 30, 2017, she was not invited to a training meeting. 2 Complainant identified her disabilities as adjustment disorder with mixed anxiety, and depressed mood, acute stress syndrome, insomnia, vertigo and chest pain. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021000318 3 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant submitted a response in opposition to the Agency’s motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant submitted a brief on appeal. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 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 disability or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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 his decision, the AJ determined that “[i]n almost every instance, Complainant takes a benign workplace event and speculatively warps it into a discriminatory act.” 2021000318 4 The AJ found that Complainant was unhappy under two managers. Complainant asserted that working in HRM caused her stress and other physical symptoms. Around the end of 2016, Complainant filed for workers’ compensation and stopped coming to work toward the end of 2016. In early December 2016, Complainant requested a reasonable accommodation. The physician’s note recommended an assignment to a different supervisor and work area with comparable duties, no greater than 40 hours per week, similar pace and volume, no exposure to stressors, and comparable commute time. On January 5, 2017, the District Reasonable Accommodation Committee (DRAC), Complainant and management discussed a possible detail to In-Plant Support (IPS) as an Operations Support Specialist (“OSS”) or, alternatively, a return to HRM because the managers Complainant did not get along with had retired. The Manager In- Plant (Manager) offered Complainant the OSS detail in which she accepted. She started at IPS on January 17, 2017. Regarding Complainant’s claim that a co-worker (CW-1) made comments regarding Complainant, the AJ determined Complainant and CW-1 simply did not get along. The Manager explained when Complainant mentioned to the Manager that she overheard CW-1 on the phone telling someone that Complainant will be removed from the department, he asked CW-1 if she had a conversation on the phone concerning Complainant, she denied it. Moreover, the Manager asked Complainant if she had a witness in support of her allegation, but she could not provide one. Regarding Complainant’s claim that at the beginning of her detail, she met with her former manager and new manager (Manager In-Plant) and they set up her starting hours would be from 5:00 a.m. to 1:30 p.m. Two weeks into the detail, the Manager informed Complainant that a competitive bid OSS position with an earlier start time was going to be advertised. He told Complainant the bid position would be a good opportunity to cross-train and gain experience in the department. However, Complainant did not apply for the position. The AJ understood Complainant felt pressured by the invitation but there was no evidence that the Manager intended to pressure or single out Complainant. The record reflects that the Manager gave the same information and encouragement to another similarly situated employee. According to CW-1, she explained that the In-Plant Department attempted to assist Complainant because she had little knowledge about processing programs such as Windows, Excel and Word documents, and that she would often inadvertently corrupt files. The In-Plant Team created instructions in order to best assist her. She stated that the Acting OSS would delete the corrupted files and build new ones to assist Complainant. Further, CW-1 stated that on September 12, 2017, she was supposed to conduct training for the supervisors at 7:00 a.m. when Complainant showed up. She noted that Complainant was not scheduled for the training and “she sat there staring at me without saying a word.” CW-1 stated that there were two other trainers with her. One of the trainers asked Complainant if she was scheduled for the training and she stated that she was not scheduled. 2021000318 5 CW-1 stated that Complainant made everyone uncomfortable and the other trainer asked her what was wrong with her because she seemed confrontational and aggressive towards CW-1. Complainant had forgotten that she was to attend the training and got up and left the room. Complainant claimed that on August 31, 2017, the Manager informed her that CW-1 wanted to replace the MDO and he proceeded to say that he would rather make CW-1 the Transportation Manager. While the AJ accepted that the Manager had this conversation with Complainant, there was no evidence that the Manager intended his comments to be intimidating. In early September 2017, the Acting Manager In-Plant (Acting Manager) was filling in for the In-Plant Manager when CW-1 informed him of an incident between herself and Complainant. On September 11, 2017, the Acting Manager called Complainant to his office to get her side of the story. He stated that he wanted everyone to get along and asked Complainant if she could continue taking instructions from CW-1. After hearing Complainant’s side of the story, the Acting Manager did not take any action against her. The AJ stated that in regard to Complainant’s claim that she was not invited to participate a training for the HRM department. The Human Resources (HR) Manager explained that Complainant was not included because she was not working in HRM at the time due to her detail to IPS.3 In October 2017, Complainant asked the HR Manager if she would receive a pay for performance salary increase. The HR Manager asserted that he never told Complainant that she would not receive a salary increase/performance raise. He explained that Complainant received a 3% increase in January 2017 based on the 2016 NPA cell 6 rating and in accordance with EAS pay rules which was the same rating the entire HR Department received. Complainant asserted that on October 17, 2017, she was not accommodated per his medical restrictions when she was removed from his detail and sent to Tour 3. The Manager explained all In-Plant OSS are required to be cross-trained. He acknowledged asking Complainant to cross train on Tour 3 as it is part of her development like every other OSS have done in the past and that the Manager was not asking Complainant to do something which he himself would have done. The image which emerges from our consideration of the totality of the record is that there were conflicts and tensions with Agency management and some of her coworkers that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to her supervisor or coworker’s personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). 3 The record reflects that Complainant was also upset that she was not invited to an HRM all staff meeting scheduled for October 30, 2017. By that time, Complainant had returned to HRM, the HRM Manager forwarded the invitation to Complainant. 2021000318 6 See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the individuals identified by Complainant were motivated by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s summary judgment 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 2021000318 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. 2021000318 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 March 23, 2022 Date