[Redacted], Mathilda S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2021004825 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mathilda S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004825 Hearing No. 480-2021-00369X Agency No. 4F-926-0127-20 DECISION On August 23, 2021, 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 August 11, 2021 final order 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. At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk, PS-06, at the Post Office in Corona, California. On October 1, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of her race/national origin (Hispanic) when: 1. Between April and July 2020, the Customer Services Manager (CSM) sent Complainant home early on numerous occasions; 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. 2021004825 2 2. During the week of May 16, 2020, an Acting Supervisor (204B) changed Complainant’s off-days in a way that denied her the opportunity to work penalty overtime; 3. On May 19, 2020, CSM made negative comments regarding Complainant’s son; 4. On June 9, 2020, two Customer Service Supervisors (CSS1 & CSS2) gave Complainant a negative observation, subjected her to an investigative interview, and issued her a Letter of Warning for Failure to Follow Safety Rules and Regulations/Unsafe Act; 5. On June 26, 2020, management sent Complainant home after she worked only 45 minutes; 6. On an unspecified date, someone in management denied Complainant’s request for a change of schedule; 7. On July 11, 2020, CSS1 and 204B subjected her to verbal harassment, bullying and negative comments about work performance; 8. On an unspecified date, CSM accused Complainant of not being truthful regarding an incident in which she was allegedly hit by a package that had fallen off a pallet; and 9. Beginning on an unspecified date and ongoing, Complainant was constantly being watched and called over the intercom when taking her breaks. After its investigation into the complaint, the Agency provided Complainant with a copy of the investigative report (IR) and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s 2021004825 3 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. To merit a hearing on her claim of discriminatory harassment, Complainant must raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the conduct complained of was based on her statutorily protected classes; (4) the conduct affected a term or condition of her 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether 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 raise a genuine issue of material fact as to whether the conduct of the management officials named in her complaint conduct was motivated by unlawful considerations of her national origin. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory harassment be brought before an AJ for a hearing. In this case, Complainant failed to establish the existence of an evidentiary dispute sufficient to give rise to a genuine issue of material fact. We find that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Furthermore, even construing any inferences raised by the undisputed facts in favor of Complainant, there is simply no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. When asked why she believed that her national origin was a factor in the above-referenced incidents, Complainant averred with respect to incidents (1) and (2) that she was sent home early and denied penalty overtime while a non-Hispanic coworker was allowed to work extra hours. IR 95-96, 98. CSM responded, however, that Complainant had been allowed to work for up to 12 hours a day for five days a week, which was the maximum allowable. IR 167-68. 2021004825 4 Agency management are required to minimize the use of premium pay hours. Further, regarding claim (2), the record demonstrates that Complainant received penalty overtime in the week in question and, when CSM offered to change Complainant’s non-scheduled days, Complainant declined. Regarding claim (3), there is no corroborating evidence supporting Complainant’s claim that CSM made negative comments about Complainant’s son. CSM stated that Complainant expressed concerns about her son and CMS offered Complainant access to the Employee Assistance Program and told Complainant to take the time she needed to care for her son. The record reveals that CSM allowed Complainant to report to work earlier than normal on multiple days to allow Complainant to care for her son in the afternoon. As to claim (4), CSS1 observed Complainant unloading a container from a truck in an unsafe manner and asked Complainant to push the container rather than pull it. Complainant failed to comply with the instruction. CSS2 conducted an investigative interview regarding the matter and subsequently issued Complainant a Letter of Warning for “Failure to Observe Safety Rules and Regulations/Unsafe Act” for the incident. With respect to claim (5), CSS2 contacted Complainant and told her not to report to work on the date in question because she was not needed and it was her non-scheduled day. Complainant reported to work anyway and was told to go home because she was not needed and it was her non- scheduled day. As to claim (6), Complainant acknowledged that her request was not denied. Regarding claim (7), Complainant alleged that CSS1 and 204B followed her in the PO Box area and told her she was slow, taking too much time, and mocked her. Both officials denied that this incident occurred. Complainant presented no corroborating evidence nor pointed to any evidence demonstrating that this alleged incident was based on discriminatory animus. With regard to claim (8), Complainant claimed that she was hit by a parcel that fell off a pallet being pushed by a coworker and reported the incident to management. CSM learned that Complainant may not have been in the vicinity of where the incident occurred. CSM explained his doubts about Complainant’s version of the incident and informed her of the consequences of including false statements on a workers’ compensation form (CA-1). Finally, as to claim (9), Complainant claimed that 204B called her over the intercom immediately when she went on break and had other clerks monitor her when she was away from her assignment. 204B does not recall having Complainant watched or calling her over the intercom during her breaks. Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by management, which cast doubt upon their truthfulness as witnesses, or which otherwise substantiate her claims. Furthermore, we note that Complainant did not oppose the Agency’s motion for summary judgment when given the opportunity to do so. 2021004825 5 The Commission therefore concludes, based upon the totality of the circumstances, that Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to whether she was subjected to a hostile work environment due to unlawful considerations of her national origin on the part of CSM, CSS1, CSS2, or 204B. Moreover, to the extent Complainant claims that she was subjected to disparate treatment in connection with any of the above-listed incidents, the Commission finds that Complainant has not demonstrated that the explanations put forth by those officials for their actions were pretext for discrimination. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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, 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. 2021004825 6 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 March 14, 2022 Date