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

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020002774 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marine V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020002774 Hearing No. 410-2019-00426X Agency No. 4K-300-0103-18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated January 17, 2020, finding no discrimination concerning her complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, Q1, at the Agency’s Howell Mill Station in Atlanta, Georgia. On April 26, 2018, Complainant filed an EEO complaint, which was amended, alleging discrimination based on race/color (African American) and sex (female) when since December 1, 2017, she had been subjected to a hostile work environment including: 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. 2020002774 2 1. On date(s) to be provided, she was spoken to in a loud demeaning tone; 2. On date(s) to be provided, she was not permitted to be the On-the-Job trainer for new hires; 3. On date(s) to be provided, after being selected for a detail as an instructor at the Academy, management would not release her from her position to take the detail; 4. On date(s) to be provided, after submitting PS Forms 3996, Carrier Auxiliary Control forms, she was verbally harassed and her request for assistance was denied; 5. On date(s) to be provided, she was singled out to discuss her DMS (Delivery Management System) tracker status on the workroom floor; 6. On date(s) to be provided, a Postal Support Employee has been permitted to use profanity on the workroom floor; 7. On date(s) to be provided, management has allowed profane music to be played on the workroom floor; 8. On date(s) to be provided, she was called boy; 9. On date(s) to be provided, she was spoken to about a possible sex change which she believed constituted sexual harassment; 10. On date(s) to be provided, she was singled out for wearing a head wrap; 11. On date(s) to be provided, she was required to provide mail to a concierge at a delivery point; 12. On date(s) to be provided, management has permitted employees to talk about their sex lives, which she believed constituted sexual harassment; 13. On date(s) to be provided, a male coworker was permitted to perform a strip tease on a table at her facility; 14. On date(s) to be provided, her timecard was misplaced; 15. On date(s) to be provided, she became aware that her supervisor was displaying religious information on the workroom floor; 16. On date(s) to be provided, her supervisor has spoken about the Bible and church during plan 5 service talks; 2020002774 3 17. On date(s) to be provided, whenever she attempted to ask her manager a question, her manager would tell her to return to her case and put her mail up; 18. On a date to be provided, her supervisor looked her up and down and stated, "Oh I can still get in there," which she believed constituted sexual harassment; 19. On date(s) to be provided, she was required to deliver mail in an unsafe area on her route; 20. On date(s) to be provided, coworkers have been permitted to smoke in a non-designated area which has exposed her to second-hand smoke; 21. On date(s) to be provided, she was subjected to an investigative interview; 22. On December 1 - 31, 2017, she was required to work every day; 23. On February 21, 2018, she was placed on emergency placement in an off duty without pay status; 24. In March 2018, on a date to be provided, a carrier simulated a sex act on the workroom floor; 25. On March 26, 2018, she was subjected to a driver observation; 26. On March 26, 2018, she was subjected to an official discussion; 27. On April 3, 2018, after her mediation for the instant complaint, her supervisor shared what was discussed at the mediation with coworkers; 28. On April 3, 2018, and date(s) to be provided, her supervisor during a service talk instructed employees to wear headphones if they disliked the shop talk on the workroom floor, and on April 5, 2018, he personally instructed her to wear headphones if she disliked the shop talk on the workroom floor; 29. On May 23, 2018, while at McDonald's taking her lunch break, she observed her supervisor taking pictures of her Long Life Vehicle (LLV) who then proceeded to tell a coworker Complainant was not authorized to take her lunch at McDonald's since it was not in her line of travel; 30. On March 31, 2018, she was issued a Letter of Warning for Failure to Follow Instructions; 31. On June 5, 2018, while at Chick-fil-A taking her lunch break, she observed her supervisor taking pictures of her LLV; 2020002774 4 32. On or about June 6, 2018, she was subjected to an investigative interview regarding allegations of her failing to follow instructions; 33. On date(s) to be provided, management has stalked and/or followed her; and 34. On date(s) to be provided, management has not provided her with proper training on how to operate the scanners.2 After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Regarding claim 1, supervisors, identified by Complainant, denied the incident or witnessing the incident as alleged. Regarding claims 2 and 3, management indicated that Complainant’s former, now retired, supervisor did not permit her to be an on the job trainer in late 2017. In order to be a trainer, an employee must be nominated by the National Associate of Letter Carrier (NALC) and concurred by management. In this case, Complainant was nominated by the NALC Vice President, but management did not concur because Complainant and another carrier allegedly displayed inappropriate behavior on the workroom floor at the Industrial Post Office. Management also followed up with the NALC President and he also did not concur with the NALC Vice President’s nomination. Complainant was not denied a detail because a job instructor/trainer was not a detail position. Regarding claim 4, Complainant’s supervisors denied verbally harassing Complainant as alleged. Complainant was asked to swap territory, but she refused to do so. A Sales, Service, and Distribution Associate Supervisor, identified by Complainant as one who denied her auxiliary request, indicated that she had no knowledge of the incident, and she did not know Complainant. Regarding claim 5, Supervisor A did not remember the incident and denied singling out Complainant. Regarding claims 6, 7, 12, 13, 14, 15, 16, 18, 24, 28, and 33, management indicated that they were not aware of the incidents and/or those claims were untrue. 2 Although Complainant also alleged that on March 21, 2018, the police was called on her, the Agency dismissed the subject claim for failure to state a claim since it involved a collateral attack on another forum's processing. Complainant has not challenged the dismissal of this claim and we see no reason to disturb the dismissal. The record also indicates that Complainant initially alleged but subsequently withdrew her claim concerning her working more than one final “pull” call. 2020002774 5 It was the Agency’s normal practice that if an employee used profanity on the workroom floor, the employee would be removed from the workroom floor, asked to refrain from doing so, and reprimanded appropriately. Management would not permit profane music to be played on the workroom floor. There is no evidence Complainant reported these incidents to management. The record indicates that on April 5 and 6, 2018, Complainant sent her emails to her union claiming that she was harassed by her Coworker (a City Letter Carrier), Supervisor B, and Supervisor C. She claimed that Supervisor C talked about religion during a meeting and had a bible on her desk openly. On April 24, 2018, her union Vice President requested management to investigate Complainant’s harassment claim concerning inappropriate behavior at the facility. From May 8, 2018, to June 6, 2018, the Agency conducted its Initial Management Inquiry Process (IMIP) by interviewing a number of employees and supervisors, including the Coworker and Supervisor B. During IMIP, the Coworker stated that he did push-ups, for his work-out, in the breakroom, and took his shirt off because he was sweating from doing the push-ups. He denied getting on the table as Complainant claimed. Supervisor B indicated that he did push-ups at that time because the Coworker challenged him on his break. The Coworker and Supervisor B denied making any remarks about their wife as alleged. They also indicated that Complainant never told them she was offended by their behavior or was harassed. The Coworker indicated that Complainant used profanity and talked sexually. Supervisor B stated that during a meeting, when Complainant interrupted the Coworker while he was talking, he merely told her “if you don’t want to hear what goes on, invest in some headphones.” About Complainant’s claim regarding Supervisor C (who was not interviewed during IMIP since she was out on long term medical leave), Manager B indicated that Supervisor C did not keep bible scripture on her desk; rather she had a flip calendar like chicken soup for the day with encouragement words and she did not quote biblical stricture during meetings as Complainant claimed. Regarding claims 8 and 9, an investigator for the instant complaint noted that he was not able to obtain an affidavit from Employee A who allegedly called Complainant “boy.” Complainant described the incident in that Employee A was making a joke when he made that remark and she told him that she was not a boy. Employee B was also trying to stop Employee A and told Employee A that he could not call Complainant “boy” because she may be having or going through a sex change. Complainant indicated that she was totally confused with Employee B’s remark. Complainant does not claim that she told Employees A and B she felt harassed by their remarks and to stop harassing her or reported the incident to management. Regarding claims 10 and 23, Manager A indicated that Complainant was not singled out. There were two Carriers, including Complainant, who wore hair wraps and Manager A reported this to Supervisor D as a violation of uniform policy. Supervisor D stated that she first spoke to an identified Carrier and she said she would remove her hair wrap before she left for the street. When Supervisor D next approached Complainant, Complainant told Supervisor D that she was wearing her hair wrap due to her religion. Supervisor D then told her “OK” and allowed her to wear her hair wrap. 2020002774 6 Complainant does not claim that she was not allowed to wear her head wrap due to her religion. It is noted that Complainant’s religion is not at issue. Supervisor D noted that another employee, a Custodian, was also allowed to wear a hair wrap due to her religion. Manager A indicated that Complainant, after learning Supervisor D was told by Manager A about her hair wrap, then became really loud saying she was singled out on the workroom floor where there were 31 carriers. Manager A told Complainant to go back to her case. Complainant then told Manager A not to speak to her like a child. When Complainant continued to be loud, Manager A called the Postal police. When a union steward told Complainant she needed to leave, Complainant left the work before the police came. Based on the foregoing, Manager A placed Complainant on emergency placement because she left work and did not work for six hours. Regarding claims 11 and 19, Supervisor B indicated that the mail at issue had no apartment number for a receiver and Complainant was instructed to deliver the mail to the concierge instead of returning it back to the sender. Supervisor B stated that before Complainant was recently assigned to this route, prior carriers delivered the subject mail to the concierge and he saw no problem continuing the same practice. Complainant claimed that the concierge was bullying her creating an unsafe working environment. Supervisor B was unaware of the unsafe working situation. Regarding claim 17, Manager B indicated that on April 2, 2018, Complainant, who was approximately 40-50 feet away from Manager B, was yelling out Manager B’s name and Supervisor B’s name repeatedly while they were discussing the day’s assignments. Manager B walked over to Complainant and told her to stop yelling that she was disrupting the workroom floor. Complainant wanted to know who delivered her parcels on Sunday because many of the parcels were not delivered. Regarding claim 20, Manager B indicated that a few employees were smoking on the rear loading dock or on the fleet parking lot where there was no smoking signage. But, after Complainant raised this matter to a NALC representative, the issue was discussed during a labor/management meeting and these areas were designated as acceptable smoking areas. Regarding claims 21, 30, and 32, Manager B indicated that Complainant received investigative interviews and a Letter of Warning for failure to follow her supervisor’s instructions. Specifically, Complainant, and other letter carriers, were notified to meet at the Chick-Fil-A hub to retrieve the late arriving Priority mail for the routes for that day. Complainant was the only one who did not report to the Chick-Fil-A hub as instructed. Regarding claim 22, Supervisor A denied requiring Complainant or anyone to work 30 straight days. Supervisor A stated that there were many open routes during the holiday season and many employees worked six days per week. Complainant does not claim she actually worked 30 straight days. 2020002774 7 Regarding claims 25, 29, and 31, Supervisor B indicated that he conducted the route observation because it was part of his job. Complainant was randomly chosen for a street observation on March 26, 2018. Supervisor B stated that he never told Complainant she could not take her lunch at McDonald’s. He took the picture for documentation because there was a hub across the street at Chick-Fil-A and Complainant previously told him that the Chick-Fil-A hub was out of her line of travel. Supervisor B indicated that it was part of his job to observe the carrier on their route via a street observation. Regarding claim 26, Complainant clarified that she never received an official discussion. Regarding claim 27, supervisors denied the incident. The supervisors were well aware that all information, including information during a mediation, was kept private. Regarding claim 34, Complainant, in her affidavit, failed to indicate when/whether she requested and was denied training for scanning machines. Complainant filed the instant appeal. 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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. It appears that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes. Upon review, we find 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. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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). 2020002774 8 Further, Complainant generally did not express she was offended/harassed by employees’ behavior at the time of many of the alleged incidents and did not, in many instances, notify of such to management prior to the commencement of this complaint. Instead, Complainant reported that to her union which prompted management to investigate, via IMIP, her harassment claim by promptly interviewing a number of its employees and managerial officials. The IMIP report reveals that the incidents did not occur as Complainant reported. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2020002774 9 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. 2020002774 10 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 2, 2021 Date