[Redacted], Kelsie T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021004654 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelsie T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021004654 Agency No. 1C-371-0065-20 DECISION On August 16, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 22, 2021 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the relevant time, Complainant worked as an EAS-17 Operations Support Specialist at the Agency’s Nashville Processing and Distribution Center (P&DC) in Nashville, Tennessee. On July 30, 2019, Complainant filed the instant formal complaint. Complainant claimed that she was subjected to discriminatory harassment based on race (African American), sex (female) and color (Black) when: 1. she was denied training and mentoring; and 2. she was harassed by co-workers when she was sent demeaning emails and they made derogatory racial remarks. 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. 2021004654 2 After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. However, Complainant did not request a hearing or a final agency decision. Thereafter, the Agency issued a final decision on July 22, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant asserted that on various dates, she was denied training and mentoring. The In-Plant Manager (“S1”) (Caucasian, male, white) was Complainant’s first level supervisor during the relevant period. S1 stated he does not recall denying Complainant or any of her employees training. He stated, however, there were several occasions when he notified his employees that there were no training spots available because they were already filled. He did recall that on November 10, 2020, he received an email from Complainant asking to be rescheduled so she could be trained for the morning count, which he approved. S1 stated that there was no offsite training available during the period in question. 2021004654 3 S1 noted that he believed the training to which Complainant was referring was at the Postal Service’s training facility in Oklahoma, but that the Oklahoma training facility was closed due to the Covid pandemic. S1 stated, however, that Agency management developed training for employees that was done through Zoom, but Complainant did not sign up for this training. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that S1’s proffered legitimate explanations for the disputed actions were a pretext designed to mask discrimination. There is simply no evidence to indicate that discriminatory factors played any role in the training decisions at issue. Harassment 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 her protected bases - in this case, her race, color and 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). Complainant alleged that on various dates, she was harassed by co-workers when she was sent demeaning emails, and that they made derogatory racial remarks. Complainant stated that she received an email dated June 3, 2020, from the Operations Support Specialist (Caucasian, white, female) which ended with the phrase “Bye Felicia.”2 In addition, Complainant stated that on June 28, 2020, she received an email from the Operations Support Specialist that indicated that “I would appreciate it if the next time I call your phone and you are at work, that you would answer.” Finally, Complainant claimed that on July 23, 2020, the Operations Support Specialist sent her a two-page email, also addressed to five other co-workers. Complainant perceived that she was being singled out for an alleged lack of contribution to the day-to-day Operations Support process. She felt the email was belittling to her and that her co-workers were included on it for additional humiliation. During the investigation into the complaint, the Operations Support Specialist confirmed she sent these emails, but denied she intended to offend Complainant. However, she admitted she should not have ended one of the emails with “Bye Felicia.” 2 According to Dictionary.com, “Bye Felicia” is a slang term that often appears in memes, GIFs and hashtags online “to express disregard or indifference to someone, as if to say, ‘That’s it. I’m done putting up with you. I’m so over this. Goodbye.” 2021004654 4 S1 stated that Complainant did not report the incidents involving the Operations Support Specialist until a meeting he held in mid-August 2020 with her. S1 stated that he had a discussion with the Operations Support Specialist and asked her to be more careful and professional in her communications, including with Complainant. Complainant did not indicate that she experienced further harassing incidents after this discussion. Here, the image which emerges from considering the totality of the record is that there were conflicts and tensions with the Operations Support Specialist that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all workplace personality conflicts or microaggressions. 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 prove that the Operations Support Specialist, in the communications identified by Complainant, was motivated by discriminatory animus. While the term “Bye Felicia” may be mean-spirited and unprofessional, there is no indication that its single use was racially motivated. Management appears to have promptly counseled the Operations Support Specialist about her communications upon learning of it from Complainant, and there is no indication that the alleged harassment continued. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 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. 2021004654 5 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. 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. 2021004654 6 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 December 9, 2021 Date