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

Equal Employment Opportunity Commission

Mar 23, 2022

Appeal No. 2021000472 (E.E.O.C. Mar. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juanita K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000472 Agency No. 4K-220-0014-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 7, 2020 final decision 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. BACKGROUND During the relevant time, Complainant was employed as a Carrier at the Agency’s Burke Branch in Burke, Virginia. On January 18, 2020, Complainant filed a formal EEO complaint alleging harassment based on race (African American) and sex (female) when: 1. On October 11 and 12, 2019, and other dates to be specified, her PS Form 3996s [requests for overtime or auxiliary assistance] were denied; 2. On October 17, 2019, she was touched inappropriately when her manager reached for her leave slip; 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. 2021000472 2 3. On or about October 18 and 23, 2019, and other dates to be specified, she was given Pre-Disciplinary Interviews (PDIs); 4. On October 21, 2019, she was issued a Letter of Warning for Failure to Maintain a Regular Schedule; 5. On October 23, 2019, she was issued a Letter of Warning for Unsatisfactory Performance, on November 1, 2019, she was issued a 7-Day Paper Suspension for Failure to Follow Instructions - Unacceptable Performance, and on December 13, 2019, she was issued a 14-Day Paper Suspension for Unsatisfactory Performance- Failure to Follow Instructions; 6. On October 14, 2019, she was instructed to get off the clock, and when she failed to do so, management called the police on her; and 7. On October 24, 2019 and ongoing, management micromanaged her, followed her on the street and threatened to fire her. After an investigation, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on August 7, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. Specifically, the Agency determined that Complainant did not establish that she was subjected to harassment in violation of Title VII because she did not prove that her protected bases were motivating factors in any of the incidents. The instant appeal followed. ANALYSIS AND FINDINGS 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 and/or sex. 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). The Acting Supervisor, Customer Services, also Complainant’s supervisor (“S1”) explained that she was the management official responsible for denying Complainant’s requests for overtime or auxiliary assistance (From 3996s). At that time, she said the manager told S1 that the mail volume did not justify overtime use. 2021000472 3 Regarding Complainant’s Letter of Warning dated October 21, 2019, S1 stated during the relevant period, in less than one month, Complainant was late six times. S1 stated that on October 23, 2019, Complainant was also issued a Letter of Warning for Unsatisfactory Performance (unauthorized overtime). Regarding the November 1, 2019 and December 13, 2019 suspensions, S1 explained that Complainant would not listen to her or take direction which resulted in unacceptable work performance. S1 provided a number of examples of this occurring. The Supervisor, Customer Service (“S2”) stated that on October 21, 2019, she went out with Complainant in order to work on her performance and provide training. S2 informed Complainant on the route that she needed to be back to the office, clock out and go home. However, Complainant did not follow her instructions. S2 stated, “at one point, Complainant was in the breakroom talking on her phone. She told me that the only way she would leave the workroom was if the police were called. She did not leave me any other options, and so I called the police.” According to Complainant’s manager, he denied touching Complainant inappropriately when he reached for her leave slip. He asserted that he never had any interaction with Complainant or any other female employee without a shop steward present in order to protect himself from allegations or misunderstandings. With respect to Complainant’s allegation that management micromanaged her, followed her on the street, and threatened to fire her, the manager noted it was a standard procedure to go point to point with different carriers. He stated that a supervisor’s duty is to observe their performance, look for training opportunities and to review day to day actions of the carriers. The image which emerges from our consideration of the totality of the record is that there were conflicts and tensions with Agency management that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor’s personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). 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. Beyond her unsupported assertions, Complainant produced no evidence of discrimination. 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). 2021000472 4 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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, 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. 2021000472 5 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. 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