[Redacted], Linn L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.Download PDFEqual Employment Opportunity CommissionJul 19, 2021Appeal No. 2021001750 (E.E.O.C. Jul. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linn L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001750 Agency No. 4B-040-0014-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 14, 2020, 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. 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 AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Sales, Services Distribution Associate, Level 6, at the Agency’s Freeport Post Office located in Freeport, Maine. On April 17, 2020, Complainant filed an EEO complaint alleging that she was subjected to harassment based on sex (female) and age (63)2 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. 2 In her complaint, Complainant originally included disability as a third basis of discrimination. She subsequently withdrew the disability allegation. 2021001750 2 1. From November 29, 2019 through December 19, 2019, Complainant received fewer work hours and less overtime than her coworkers; 2. On November 27, 2019, Complainant submitted a request for travel reimbursement that has not yet been approved; 3. On unspecified dates in December 2019, Complainant was denied higher level opportunities and pay; 4. On December 4, 2019, a coworker argued with Complainant and stated “if you weren’t so fat you would be able to do your job”; 5. On or about December 10, 2019, Complainant was given a Pre-Disciplinary Interview (“PDI”); 6. On December 6 and 13, 2019, Complainant’s schedule was changed without notification; 7. On unspecified dates, Complainant was scheduled to work a 12-hour shift and was scheduled to work without an eight-hour break between shifts; 8. On or about December 17, 2019, Complainant reported to management that she felt harassed by a coworker, and they did not reprimand the coworker for her actions; 9. In December 2019, Complainant was forced to perform Amazon work alone. 10. On or about December 21, 2019, management sent the police to Complainant’s home for a wellness check; 11. On December 27, 2019, Complainant’s request for sick leave was denied; 12. On January 3, 2020, Complainant was given a PDI for attendance; and 13. On February 4, 2020, Complainant was issued a 7-Day Suspension for Unacceptable Conduct. After its investigation into the complaint, 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 requested a final Agency decision without a hearing. In its final decision, the Agency found that regarding Claims 1, 2, 3, 5, 6, 7, 9, 11, 12, and 13, Complainant had alleged instances of disparate treatment and had failed to show that similarly situated employees were treated more favorably. In addition, the Agency concluded that it asserted legitimate nondiscriminatory reasons for its actions, which Complainant failed to rebut. For Claim 1, Complainant was a part-time flexible employee, and therefore was not entitled to a set amount of hours or overtime each week; even so, Complainant often did not take overtime that was offered to her, and the other part-time clerk employed at the same facility received substantively the same hours and overtime that she did. For Claim 2, Complainant’s supervisor did not have the opportunity to inform Complainant that she needed to provide additional information to receive her travel reimbursement, and the record shows that Complainant subsequently received the reimbursement. For Claim 3, management officials affirmed that no opportunities for higher pay existed at the time of events giving rise to the complaint. For Claim 5, Complainant was given a PDI for acting aggressively toward a customer. 2021001750 3 For Claim 6, Complainant’s role as a part-time flexible employee came with the expectation that unexpected schedule changes would sometimes occur; in addition, the change in schedule at issue was due to Complainant’s own request for a day off. For Claim 7, the time sheets in the record indicate that Complainant did not work a 12-hour shift more than once in the relevant time period, and she had more than eight hours off until her next shift. For Claim 9, Complainant was never forced to perform work for Amazon alone, based on her request for help, though other clerks were able to do such work alone. For Claim 11, Complainant’s request for sick leave in order to attend a dental appointment was denied because there was no coverage at that time; Complainant’s supervisor did not deny sick leave indefinitely, and Complainant would have been able to request sick leave at a later date. For Claims 12 and 13, Complainant had failed to report to work and had taken non-scheduled time off; based on prior discipline, the Agency issued the seven-day suspension. The Agency also found that Claims 4, 8, and 10, even if true, were not based on Complainant’s status as female or being over the age of 40, and were not sufficiently severe or pervasive to rise to the level of a hostile work environment. The instant appeal followed. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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”). Assuming Complainant established a prima facie case of discrimination based on the discrete incidents, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to provide persuasive evidence of pretext or otherwise establish that discriminatory animus played a role in this matter. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to Claims 1, 2, 3, 5, 6, 7, 9, 11, 12, and 13. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2021001750 4 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to Claims 4, 8, and 10, we find these incidents do not constitute harassment. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Upon careful review of the evidence of record, including Complainants’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final 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 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, 2021001750 5 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. 2021001750 6 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations July 19, 2021 Date Copy with citationCopy as parenthetical citation