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

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2020004408 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilde M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004408 Agency No. 1G-321-0065-19 DECISION On June 3, 2020, Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 30, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, MH- 4, at the Agency’s Processing and Distribution Center in Jacksonville, Florida. The Acting Manager, Distribution Operations was her immediate manager (M1). Complainant experienced complications from migraine headaches, but did not have work restrictions related to her condition and was able to perform all of her work duties, except when she needed to take leave due to her incapacitation. Complainant was on the Overtime Desired List (OTDL) and on July 15, 2019, and July 16, 2019, management asked her to work overtime. Complainant declined stating that she would not stay and work overtime. 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. 2020004408 2 She stated the Lead Manager, Distribution Operations (M2), told her if she did not stay for overtime on Tuesday, July 16, 2019, she would be fired, so she stayed for four hours. Complainant claimed management told her that starting July 1, 2019, employees would be charged with an absence if they did not work overtime. M2 explained to Complainant that the old rules for overtime were no longer in effect, and that everyone would be following the overtime rules in the Mail Handler’s contract. She alleged M1 charged her four hours absent from overtime (AOT) on both July 15 and 16, 2019. The record shows Complainant was charged AOT on July 15, 2019, but not July 16, 2019. Complainant stated M1 required her to work overtime on July 29, 2019, July 30, 2019, August 7, 2019, and August 8, 2019, because management needed employees to stay working. She averred she worked four overtime hours each day. M1 confirmed he coded Complainant AOT four hours on July 15, 2019, because she did not stay for overtime and Complainant was contractually required to stay for overtime. M1 explained Complainant was required to work overtime due to mail volume and contractual obligation since she was on the OTDL. On July 30, 2019, M1 told Complainant she could get a tow motor or work in the low cost. She informed M1 she was feeling sick, so she would work in the low cost. M1 later came by and told Complainant to go to banding. Complainant averred M1 came by twice to tell her it should not take her all day, and that he had been watching her all day. Complainant started to cry and said she still did not feel good because she had recently thrown up, all while M1 continued to yell at her. Complainant averred she told M1 to stop harassing her. Complainant alleged management made her work in unsafe conditions on several occasions. On August 15, 2019, a 204-B Supervisor told her to feed mail, and she requested gloves to wear citing safety concerns. While she was waiting for the 204-B supervisor to bring her gloves, she averred M1 came by and told her to feed the mail without gloves and that M1 made her feed groupings without gloves from the side, while yelling at her to push mail down. On September 10, 2019, Complainant was informed the floor was going to be stripped and waxed. M1 asked her if she wanted to drive, which she declined. M1 then moved Complainant to low cost since she did not want to drive. She averred M1 moved her because low cost was being waxed and the chemicals interfered with her breathing and gave her a headache. Complainant called the Occupational Safety and Health Administration (OSHA) and wrote up safety forms about the waxing chemicals. On September 19, 2019, Complainant came in to work and the Tour 2 Part- Time Supervisor told her to pull trays off the line behind a robot. When the Safety Captain came by, Complainant asked him if it was unsafe. He informed her the line was too high and she could injure her shoulders and instructed her to fill out a safety form. Complainant informed M1 what the Safety Captain said, so he moved her to three different sections to work. On October 11, 2019, Complainant and the shop steward had filled out safety forms that were given to the Tour 2 Part-Time Supervisor because contractors that had been hired for remodeling were drilling through the tiles in the floor, where there was asbestos. The next day, M1 moved Complainant out of her bid job and put her to work next to the contractors drilling the tiles, which caused her to have a bad sore throat and migraine. 2020004408 3 Complainant alleged on August 20, 2018, M1 told her that the 204-B Supervisor said she had not worked productively on Sunday August 18, 2019, and that she had just walked around. Complainant stated she had taken Family Medical Leave Act (FMLA) leave that Sunday and was not at work that day, which the record evidence confirmed. In October 2019, Complainant submitted leave requests several times which were denied. On October 5, 2019, Complainant put in a leave request for October 8, 2019. On October 10, 2019, she submitted a leave request for October 28 through October 30, 2019. Complainant stated both requests were denied by M1, without any explanation, but that the Agency’s rules state a certain percentage of people are allowed to be off at a time. On October 11, 2019, her leave request for October 19, 2019, was denied and on October 12, 2019, Complainant’s leave request for October 13, 14, and 16, 2019, was also denied. Complainant was told they were denied because others were already on vacation. M1 explained that from September 17, 2019, through November 1, 2019, there was a robot overhaul and tray installation and that on September 4, 2019, he scaled the leave back to one person per day for that period, which is why he denied Complainant’s leave requests. Complainant averred her medical condition was a factor because M1 began to treat her differently ever since she took leave under FMLA and that he made negative comments about employees who took FMLA. Complainant averred men are treated more favorably and her EEO complaint was also a factor because of temporal proximity. On October 17, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to hostile work environment on the bases of sex (Female), disability (Migraines), and in reprisal for prior protected EEO activity when: 1. On July 15, 2019, and July 16, 2019, she was coded [Absent from Overtime (AOT)]; 2. On July 29, 2019, July 30, 2019, August 7, 2019, and August 8, 2019, she was required to work overtime; 3. On July 30, 2019, she was yelled at about her performance; 4. On August 15, 2019, September 10, 2019, September 19, 2019, October 11, 2019, and October 12, 2019, she was made to work in unsafe conditions; 5. On August 20, 2019, she was accused of not working on Sunday; 6. On October 5, 2019, her leave request for October 8, 2019, was denied; 7. On October 10, 2019, her leave request for October 28, 2019 through October 30, 2019, was denied; 8. On October 11, 2019, her leave request for October 19, 2019, was denied; and, 9. On October 12, 2019, her leave request for October 13, 14, and 16, 2019, was denied. 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). Complainant failed to request a hearing and the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). 2020004408 4 The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The instant 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 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”). Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 employer. 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). Therefore, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Because Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on her protected classes, she was subjected to a hostile work environment, alleging several incidents of what she believed to be discriminatory harassment as detailed above. However, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. 2020004408 5 In addition, even assuming the alleged conduct was sufficiently severe or pervasive to establish a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. There is no evidence aside from conclusory statements that Complainant’s protected bases were the reason behind the Agency’s actions. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because a preponderance of the record evidence does not establish that discrimination occurred. 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. 2020004408 6 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. 2020004408 7 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 November 15, 2021 Date