[Redacted], Matilda C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2020003381 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilda C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003381 Agency No. 4G-330-0479-19 DECISION 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 April 13, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant 1 (CCA1) at the Agency’s Quail Heights Post Office facility in Miami, Florida for one day. According to the record, Complainant was a probationary employee who had initially been assigned to the Miami-Sunset Branch Post Office. Testimony in the record established that on September 9, 2019, Complainant was assigned to work at the Quail Heights Post Office. She maintained that while she was out on delivery she received a call from her daughter's school and was told that there was an emergency and that she needed to pick her daughter up from school immediately. 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. 2020003381 2 Complainant stated that she called her Customer Services Supervisor (CSS1) to inform him of her emergency and that she would have to leave work to pick up her daughter. She maintained that when she returned to the station, CSS1 instructed her to sign termination papers, but she refused. She said that on learning of her refusal, the Customer Services Manager (CSM) stated that she was “unprofessional and unreliable" and directed her to sign the Letter of Termination. Complainant maintained that she refused the CSM's instruction and left the station to get her daughter. The next day, on September 10, 2019, Complainant said that, as instructed, she reported to Quail Heights Post Office where the CSM directed her to either resign or be terminated. She said that the CSM explained that if she was terminated, she would not be able to work for the Agency again. She testified that based on those options, she chose to resign, but it was a forced resignation. According to the Form 2574, the CSM had created on September 9, 2019, Complainant resigned from the Postal Service effective September 11, 2019, and no reason was provided for the resignation. Complainant said after she was forced to resign, the CSM permitted her to speak with Shop Stewards (SS1 and SS2). SS1 averred that the CSM called him to CSM’s office and informed him that he had given Complainant the option to resign or be terminated, as she had returned to the station with undelivered mail on September 9, 2019. SS1 said that he queried why Complainant was being discharged when another CCA1 had returned undelivered mail to the station on three or four consecutive days without discipline. SS1 said that the CSM ignored his inquiry and retorted that SS1 should talk to Complainant before she left the station. SS1 said that he met with Complainant who informed him and SS2 that the CSM had forced her to resign, or be terminated for bringing back mail the previous day. On November 6, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (black), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on September 10, 2019, Complainant felt forced to resign when management said she would be fired if she didn't resign. After 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. With respect to the retaliation claim, the Agency found that Complainant failed to establish a prima facie case because she had not engaged in protected activity at the time of her resignation and no manager involved in the resignation was aware of any EEO conduct by Complainant. Regarding the bases of race and color, the Agency noted that Complainant identified CCA1, another probationary employee, whose race was White/Latino. 2020003381 3 Complainant stated that, in an affidavit, a T-6 City Carrier averred that CCA1 had been assigned to deliver route 5720, and on three consecutive days CCA1 “brought hours [worth] of undelivered mail back to the office without completing a form 1571." The T-6 City Carrier asserted that on each of the days, she had to re-case and re-send CCA1’s undelivered mail back out for delivery, and that even though CSM was aware of these incidents, CCA1 was never disciplined. The Agency noted that CSM denied having any knowledge of CCA1’s failure to deliver mail, but SS1 countered that he had informed CSM of the CCA1 matter when he learned that Complainant had been forced to resign. Nonetheless, the Agency considered that SS1 and another CSS stated that CCA1 returned his undelivered mail to the station, and did not abandon his route as management stated that Complainant did. Accordingly, the Agency found that CCA1 and Complainant did not engage in similar conduct, and thus Complainant did not establish a prima face case of race and color discrimination. The Agency observed that even if Complainant had established a prima facie case, management had articulated a legitimate, nondiscriminatory reason that Complainant failed to show was pretextual. The Agency noted that CSM attested that he told Complainant she was being terminated because she abandoned her route, as this was just cause for termination during an employee's probationary period. He attested that Complainant then told him that she was leaving, as she had to take care of something. CSM said the next day he presented her with forms for termination and resignation. He said she chose resignation. Because Complainant admitted to leaving the job without finishing her route, the Agency found that there was no evidence to support a conclusion that management's rationale as to why Complainant was provided the option to resign or be terminated was untrue or that Complainant was discriminated against based on her race or color. Finally, the Agency determined that since Complainant alleged she was forced to resign, her complaint raised a constructive discharge claim. The Agency noted that Complainant claimed she had been subjected to intolerable working conditions by management at the Quail Heights Post Office. However, the Agency found this claim lacking because Complainant had been only assigned to Quail Heights for one day, and that she had returned to the station without delivering any of the mail, left, and did not return to work until the next day. The Agency observed that given there was no evidence that the managers had engaged in abusive or abrasive conduct, and Complainant had failed to prove that her race, color, or EEO activity motivated the decision to terminate or accept her resignation, Complainant failed to meet her burden to establish a prima facie case of constructive adverse action. This 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, at Chapter 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 2020003381 4 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 lawâ€). We have reviewed the record and find that since Complainant’s EEO activity occurred after Complainant had resigned, she failed to establish a prima facie case of retaliation. Even if Complainant had established a prima facie case of retaliation and race and color discrimination, we find that Complainant failed to show by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. We further find that Complainant did not demonstrate that any similarly situated employees were treated more favorably under similar circumstances. Although the record supports the conclusion that both Complainant and CCA1 were probationary employees who returned to the station with undelivered mail, the distinction is that CCA1’s return occurred at the end of his shift while Complainant left her route before her shift ended. Consequently, they are not similarly situated and the Commission will not question or second guess management’s decision not to discipline CCA1 for returning undelivered mail. Finally, we find the constructive discharge claim fails because Complainant failed to produce evidence of intolerable working conditions. CONCLUSION The Commission AFFIRMS the Agency’s decision finding no discrimination. 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. 2020003381 5 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. 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. 2020003381 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation