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

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2019004225 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Macy B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019004225 Agency No. 1G-731-0026-17 DECISION On May 25, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 5, 2019 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., 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. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Oklahoma City Processing and Distribution Center in Oklahoma City, Oklahoma. On August 7, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination based on her race (Asian), national origin 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. 2019004225 2 (Vietnamese Chinese), sex (female), age (over 40), color, disability, and in reprisal for prior EEO activity (numerous prior EEO complaints) when:2 1. on April 7, 2017, she became aware that management restated something that she had stated in mediation for the instant complaint; 2. on April 4, 2017, she was issued three different CA-17 “Claim for Compensation” forms with different work requirements on the Delivery Bar Code Sorter (DBCS) machines; 3. on May 22, 2017, she was paid eight hours of sick leave instead of her requested eight hours of Leave Without Pay (LWOP); 4. on May 29, 2017, she was charged with four hours of LWOP; 5. on May 29, 2017, she failed to receive eight hours of holiday pay; 6. on August 2, 2017, her request for 2.04 hours of leave was denied; and 7. on August 2, 2017, she was required to take a one-hour lunch, and work out of schedule. Following an investigation, Complainant initially requested a hearing before an Administrative Judge. Complainant, however, withdrew the hearing request. On April 5, 2019, the Agency issued a revised final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful 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). 2 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-7. 2019004225 3 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. The Supervisor, Division Operations (African-American, American, female, over 40) stated that during the period she was Complainant’s supervisor. With respect to Complainant’s allegation that she was issued three different CA-17 forms with different work requirements on the DBCS machines, the supervisor explained that in 2016, Complainant filed an accident report and copied her husband’s CA-17. The supervisor stated that she had a discussion with Complainant and her husband, informing them both, that they cannot solicit other employees’ medical information. The supervisor stated that she gave Complainant a new CA-17 with 7.5 hours relating to a “simple grasping” restriction, to give to her doctor. The supervisor stated that if Complainant’s doctor says Complainant can work more than four hours, then she can increase her work in the DBCS operation. Complainant claimed further that on May 22, 2017, she was paid eight hours of sick leave instead of her requested eight hours of LWOP. The supervisor acknowledged that she speaks with Complainant on a daily basis regarding her “Request for or Notification of Absence,” PS Form 3971 and asked her to bring both her handwritten Form 3971, as well as the system- generated 3971, to their daily discussions so they could compare the handwritten and the call in form to ensure Complainant was getting what she needed. She asserted that the system showed that Complainant requested sixteen hours of Family Medical Leave Act (FMLA) for May 22 and 23, 2017. However, the supervisor stated that she changed Complainant’s request. She stated that she double checked Complainant’s 3971’s that were on file and there were no 3971s for May 22 and 23, 2017. Furthermore, the supervisor stated that Complainant has changed her request on many occasions but she always grants her requests. Complainant next claimed that on May 29, 2017, she was charged with four hours of LWOP and failed to receive eight hours of holiday pay. 2019004225 4 The supervisor stated that she did not know that there was even a problem until Complainant informed her about regarding the four hours of LWOP. The supervisor further stated that Complainant should have been paid by OWCP four hours for her holiday leave. The supervisor averred that Complaint would need to file with OWCP for the extra four hours. A review of Complainant’s Time and Attention Collection System (TACS) Employee Everything Report indicated that on May 29, 2017, Complainant worked 3.99 hours and was charged four hours OWCP, 3.99 hours holiday work and four hours hours holiday leave. The record also reflects that Complainant’s pay record for the Pay Period 12/2017 indicated Complainant worked four hours and was paid four hours holiday pay for May 29, 2017. A review of Complainant’s CA-7s reflected that she has not requested to be compensated from OWCP since March 29, 2017. The supervisor stated that she was not aware of Complainant’s claim that her request for 2.04 leave was denied on August 2, 2017. She stated that when she reviewed Complainant’s claim, she noted Complainant had called in for two hours LWOP on August 2, 2017, which she approved. The supervisor stated that because Complainant reported to work late, she told her to take lunch and make up her two hours. She stated normally Complainant work her hours from 700 to 1100 but she showed up late and they agreed to make up the four hours on the back end so she would get her pay from OWCP. With respect to Complainant’s allegation that on August 2, 2017, she was harassed when her request for 2.04 hours of leave was denied, the Manager, Maintenance Operations/Manager, Distribution Operations (Caucasian, American, female, over 40, white) recalled receiving a call from Complainant stating that she would be late to work. The Manager instructed Complainant to call the Enterprise Management Resource System. She stated that when Complainant reported to work, she gave her supervisor a PS Form 3971 requesting LWOP and FMLA in which the supervisor approved. Moreover, the Manager stated that she does not recall seeing a PS Form 3971 denying any leave for August 2, 2017. Regarding Complainant’s allegation that on August 2, 2017, she was required to take one-hour lunch and work out of schedule, the Manager explained her limited duty offer states working in automation four hours daily. She further noted that her supervisor had Complainant work four hours for that day once she reported to work late. The Supervisor, Distribution Operations (African-American, Haitian/American/Native American, female, under 40, light brown), stated that during the relevant period, she did not supervise Complainant. However, she was involved in a mediation with Complainant related to a prior complaint but never divulged any information discussed during the mediation for the instant case. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. 2019004225 5 Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Harassment/Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. 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 other words, 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, national origin, sex, age, color, disability or prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s supervisor, the Manager and the Supervisor, Distribution Operations all denied subjecting Complainant to harassment. The image which emerges from considering the totality of the record is that there were conflicts and tensions with management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment unless that treatment is the result of discriminatory factors. See 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.”). Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, national origin, sex, disability, age and/or prior EEO activity. Her claim of harassment/hostile work environment is precluded based on our findings that Complainant 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). 2019004225 6 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3 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. 3 On appeal, Complainant does not challenge the September 12, 2017 and October 3, 2017 partial dismissals issued by the agency regarding two other claims (that she was discriminated against on the bases of race, national origin, sex, age, color, disability and prior EEO activity when on April 7 and 28, 2017 and unspecified dates, her prior EEO cases were not properly processed; and on August 2, 2017, her request for FMLA was denied). Therefore, we have not addressed these issues in our decision. 2019004225 7 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. 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 20, 2021 Date