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

Equal Employment Opportunity Commission

Aug 31, 2021

Appeal No. 2020002935 (E.E.O.C. Aug. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maranda B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002935 Agency No. 4K-200-0090-19 DECISION On January 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 26, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented herein is whether the Agency in its Final Agency Decision (FAD) correctly concluded that Complainant was not subjected to discrimination and harassment based on sex, age, disability, and retaliation (prior EEO activity) as alleged. 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. 2020002935 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services/Distribution Associate at the Agency’s Hampton Park Finance Unit in Capital Heights, Maryland. On August 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (physical-multiple), age (65), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. beginning on April 2, 2019, and continuing, on numerous occasions, Complainant’s request for a revised schedule were denied; and 2. beginning on June 4, 2019, Complainant was told to continue to report to work at 12:00 PM. Claim 1 Complainant alleges that a supervisor (Supervisor) denied her request for a revised schedule on approximately twelve occasions in 2019. Complainant explained that she completed a PS Form 3971 for each revised schedule request, to attend physical therapy and doctor's appointment. Each time, Complainant was provided a written denial indicating that a schedule change was not conducive to staffing needs and scheduling. The denials advised that Complainant could revisit her requests with management in 60 days. Complainant disputed the reason for the denial and argued that there were no staffing problems, noting that she had previously been provided a revised schedule for four dates in April 2019. Complainant asserted that a coworker (C1) (female, over age of 40, no disabilities, prior EEO activity) was treated more favorably when a manager (Manager) approved a two-year revised schedule for C1 based on personal convenience. Complainant also alleged that another coworker (C2) (female, over age of 40, no disability, prior EEO activity) was also treated more favorably when Manager changed C2’s nonscheduled days off from Sunday/Saturday to Saturday/Monday. Complainant was not aware of any other employees within the past year who had a revised schedule disapproved by Manager. Supervisor acknowledged that she denied Complainant's requests for a revised schedule due to the needs of the service. Specifically, the office was short staffed and management could not pull a clerk off the window during the peak hours of their passport services. According to Supervisor she had previously approved Complainant’s requests when there was enough staffing available to cover Complainant's duties. Manager asserted that C1 was not similarly situated in that C1’s office hours were 8:00 a.m. to 5:00 p.m. and C1’s schedule change met the needs of the service. Further, Complainant had work restrictions in place that C1 did not have. C2’s situation also differed from Complainant’s 2020002935 3 in that C2’s days off were changed when C2 was moved to a different office due to operational needs. Like C1, C2 also did not have the same work restrictions as Complainant. Claim 2 Complainant alleged that she was instructed by Supervisor to work 12:00 p.m. to 5:00 p.m., even though an internal grievance settlement placed her back to her original schedule of 9:30 a.m. to 2:30 p.m.2 While waiting to clock into work, Complainant contends the Postmaster instructed her not to badge-in at her originally scheduled start time. Manager reminded her that Supervisor had instructed her not to report to work until later. Complainant asserted that she informed both the Postmaster and Manager that she had a grievance settlement which placed her back to her original bid job hours. but they refused to acknowledge the settlement and kept repeating to her: "What does your 2499 (undefined internal Agency reference) say?" According to Complainant, Manager told her if she that if she began her tour at 9:30 a.m., she would be given a pre-disciplinary interview (PDI) for Failure to Follow Instructions. Complainant notes that the Postmaster later informed her that she could temporarily begin at 9:30 a.m. Manager explained that when she instructed Supervisor to have Complainant follow the 12:00 p.m. schedule she was unaware of the internal grievance settlement. When Complainant later provided her with a copy of the settlement, Complainant was returned to the 9:30 a.m. start time. In both Claims 1 and 2, Complainant argued that her sex was a factor because men are treated with more respect regarding their representations of injury, are not called liars, and are not threatened with arbitrary sanctions. She asserted that her age was a factor because younger employees are treated with more respect. Complainant believed that older employees not valued by management and are more likely to be disciplined, replaced, or pressured to retire. Complainant contended that her medical condition was a factor because after she requested a medical accommodation for her injuries, she was treated with hostility. Management, asserted Complainant, looked for opportunities to harass, annoy and frustrate her by denying her accommodations, denying adequate time for therapy, and changing her work hours. Complainant stated that her prior EEO activity was a factor because of the temporal proximity between her EEO participation and subsequent hostile comments, actions, reactions, and treatment from management. Complainant is convinced that if she would stop her involvement in EEO matters, her employment environment would greatly improve. Management denied that Complainant’s protected classes were factors in the alleged actions. 2 The record indicates that Complainant’s reduced hours are based on work restrictions in place because her disability prevented her from working an eight-hour shift. 2020002935 4 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.3 CONTENTIONS ON APPEAL In her Appeal, Complainant indicates that the alleged Agency actions violated her seniority rights under the Agency’s Contractual Bargaining Agreement (CBA). Complainant also indicates that the Agency failed to honor her bid rights in her reasonable accommodation under Agency protocols and agreements. Complainant asserts that the Agency did not have the right to reschedule modified assignments within the hours of the bid assignment and to the needs of organization without showing undue hardship to justify the re-assignment. Complainant also asserts that the investigator failed to contact the four witnesses that she had identified. Complainant asks that the Commission reverse the Agency’s finding of no discrimination. In its Opposition to Complainant’s appeal, the Agency reiterates its legitimate, non- discriminatory reasons and contends that Complainant’s assertions are not supported by the record. The Agency also asserts that while the investigator is required to conduct a thorough investigation, there is no mandate that the Agency contact each of Complainant’s ten proffered witnesses without regard to relevance or superfluity. The Agency requests that the FAD be affirmed. STANDARD OF REVIEW 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, at Chap. 9 Section 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”). 3 Complainant, who was represented by counsel, submitted an untimely hearing request following the Agency’s issuance of its FAD and the instant appeal. Based on the case’s pending status on appeal, an AJ dismissed the hearing request. Complainant does not challenge the AJ’s dismissal. 2020002935 5 ANALYSIS AND FINDINGS EEO Investigator’s Failure to Contact Witnesses On appeal, Complainant asserts that the investigator failed to contact four witnesses she had identified. However, Complainant failed to describe how the additional testimony from those witnesses would demonstrate that discrimination occurred in the instant complaint. Moreover, it is the Commission’s position that, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. Equal Employment Opportunity Management Directive for 29 CFR Part 1614 (EEO MD-110), at Ch. 9, § VI.A. (Aug. 5, 2015). See also, Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,654 (Jul. 12, 1999) ("[N]o new evidence will be considered on appeal unless the evidence was not reasonably available during the hearing process"). We find no such showing in the instant complaint. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, regarding Claim 1, Supervisor indicated that she denied Complainant's requests for a revised schedule due to a staffing shortage. Supervisor also stated that Complainant had previously been granted revised schedules when operationally possible. Complainant did not 2020002935 6 refute this explanation but argues that the Agency did not have the right to reschedule modified assignments within the hours of the bid assignment to meet organizational needs without showing undue hardship. However, Complainant’s argument is misplaced. There is no indication in the record that Complainant’s preferred hours were requested as a reasonable accommodation.4 As such, we do not find that Complainant’s rights were violated with respect to Claim 1. Regarding Claim 2, management explained that they were unaware of Complainant’s grievance settlement regarding her start time. Record evidence indicates that Complainant’s request was granted when she presented a copy of the settlement to management. There is also no evidence that Complainant received any PDI. Additionally, we note that the comparators identified by Complainant are not similarly situated. Neither C1 nor C2 had the same restrictions as Complainant. C1’s bid assignment did not match the business hours of her office, and so her schedule was changed. C2 received a schedule change when she moved to a different post office in order to meet the needs of that location. Moreover, the comparators cited by Complainant shared many of her protected bases (sex, prior EEO activity, and age), thereby undermining her arguments that management’s actions were motivated by discrimination. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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. 4 Moreover, employers are not precluded from assessing whether modifying requested hours could significantly disrupt their operations -- that is, cause undue hardship -- or whether the essential functions may be performed at different times with little or no impact on the operations or the ability of other employees to perform their jobs. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (Enforcement Guidance), Question 22 (Oct. 17, 2002). 2020002935 7 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. 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. 2020002935 8 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 August 31, 2021 Date