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

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021000793 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mckenzie L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000793 Agency No. 4G-780-0060-18 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 January 11, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Rural Carrier at the Agency’s Pflugerville Post Office in Pflugerville, Texas. On May 14, 2018, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discriminatory harassment and a hostile work environment based on disability (deaf) and in reprisal for prior protected EEO activity2 when, beginning in December 2017 and continuing, Complainant was harassed by her co-worker (CW1) and management did not take 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. 2 Complainant’s prior EEO activity consisted of contacting the union on January 18, 2018, and filing the instant complaint. 2021000793 2 action. In support of her hostile work environment claim, Complainant alleged that the following incidents have occurred: A. beginning on or about December 16, 2017, CW1 has yelled at Complainant and stated, “bull shit” and “snitches get stiches;” B. from January 5, 2018 through January 24, 2018, Complainant was forced to take Annual Leave and/or Sick Leave due to harassment; C. beginning on February 9, 2016, CW1’s equipment was moved closer to Complainant’s equipment; D. on or about February 23, 2018, the Office-In-Charge discussed her concerns with Complainant’s co-workers; and E. on or about April 4, 2018, because CW1’s parking space was not moved further away from Complainant’s designated parking space, CW1 would mock Complainant and make faces. After its investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On January 11, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues, through counsel, that the Agency failed to reasonably accommodate her mental disability (anxiety disorder). Specifically, Complainant asserts that her mental disability was exacerbated by CW1’s taunts, mocking, and threats, which resulted in Complainant taking a leave of absence from work. Complainant explains that her physician recommended that she have minimal contact with CW1 to reduce her anxiety. However, Complainant contends that the Agency failed to do so, and therefore, failed to reasonably accommodate her mental disability. ANALYSIS AND FINDINGS Preliminary Matter - Reasonable Accommodation As an initial matter, we address Complainant’s argument that the Agency failed to reasonably accommodate her mental condition. Our review of the record indicates that Complainant has raised a new allegation on appeal - denial of accommodation. 2021000793 3 However, prior to this appeal, the crux of Complainant’s claims involved an allegation of ongoing discriminatory harassment. Specifically, Complainant claimed that she was subjected to a hostile work environment and the Agency failed to separate her from the alleged harasser, CW1. Although Complainant noted in the formal complaint that her physician recommended that she take a leave of absence because of the alleged harassment from CW1, there is no indication that Complainant requested leave as an accommodation. There is medical documentation submitted to support a Family and Medical Leave Act (FMLA) request that indicated that Complainant’s anxiety would likely exacerbate from prolonged interaction with CW1. However, when Complainant returned to the office, there is no indication that Complainant requested that the Agency separate her from CW1 as a reasonable accommodation. Rather, the Agency’s actions regarding separating Complainant from CW1 were related to Complainant’s claim that CW1 was harassing her and were secondary to Complainant’s mental disability. We note that the Agency officials only identified Complainant’s hearing impairment as her sole disability and were not otherwise aware that she had anxiety. Consequently, the record reflects that Complainant did not raise a failure to accommodate in her formal complaint, and she raised this claim for the first time on appeal. The Commission will not accept a new claim raised on appeal. Harassment/ Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 basis - in this case, her disability and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record reflects that Complainant is a qualified individual with a disability. Complainant testified that she has been deaf since childhood and she was diagnosed with anxiety and depression in 1995. Complainant explained that her conditions are permanent. 2021000793 4 Complainant further explained that she is able to perform all of her position duties, and all employees were required, as directed by management, to communicate with her and other deaf employees through paper and pen. However, Complainant indicated that she cannot perform the essential functions of her job when her anxiety is heightened or when she feels unsafe at work. Our review of the record reflects that the Agency properly determined that Complainant was not subjected to harassment as alleged. December 2017 Incident (Claim A) Complainant testified that she and CW1 had a dispute over a hamper placed in the wrong area. Complainant explained that she tried to correct the issue, but CW1 responded by saying “bullshit” and when Complainant wrote CW1 a note to get clarification on the matter, Complainant stated that CW1 wrote back “snitches get stiches.” Complainant stated she felt unsafe by CW1’s comment. She reported the incident to management as well as a grievance with the union, and her physician subsequently diagnosed her with situational anxiety. Complainant’s Manager testified that once he was made aware of the incident, he recommended a pre-disciplinary interview for CW1, and he later conducted an investigation into the matter. The investigation revealed that CW1 admitted to writing the note, but she stated that it was “just a joke.” Nevertheless, the Manager explained that the Agency had a zero-tolerance policy on creating a hostile work environment and CW1 was issued a fourteen-day suspension for her actions during the December 2017 incident. A February 16, 2018 notice reflects that CW1 was suspended for fourteen days for unacceptable conduct. Annual Leave/Sick Leave (Claim B) Complainant’s testimony indicates that her dissatisfaction with how the union handled her grievance regarding the December 2017 incident ultimately led her to the decision to take FMLA leave. Specifically, Complainant stated that the union initially refused to provide her an interpreter for the first meeting to discuss her altercation with CW1. Complainant explained the union ultimately provided interpreter services for the rescheduled meeting and she indicated that her immediate supervisor and Manager helped ensure that she received interpreter services. Complainant further indicated that she wanted to resolve the issues with CW1. However, the union did not provide transparent communication and the union waited almost one month after the December 2017 incident to provide Complainant interpreter services at the rescheduled meeting. Consequently, Complainant stated that “the union forced me to use almost all of my leave,” and indicated that her paperwork for Family and Medical Leave Act (FMLA) leave had to be exchanged three times between the union and her superior before it was approved. As a result, Complainant stated that she took sick leave from January 5, 2018 to February 4, 2018 and annual leave from February 6 - 8, 2018. 2021000793 5 In this instance, Complainant did not identify in her testimony a management official or employee as an attributing factor to her decision to take leave. We note that Complainant attributed management officials as the cause of her taking leave when she sought compensation for the leave she took in January and February 2018. On January 18, 2018, Complainant wrote a note to the union requesting to file a personal injury claim for compensation to cover her time off from work beginning on January 5, 2018. In this note, Complainant asserted that she suffered bullying at the workplace by CW1. Additionally, Complainant filed a grievance with the union on this matter claiming that she had to use sick leave because management failed to take any corrective action against the harassment caused by CW1 which resulted in Complainant not feeling safe at work. However, as previously discussed and discussed more fully below, the record indicates that management took corrective action and disciplined CW1 fourteen days for unacceptable conduct. Moved Equipment (Claim C) Complainant acknowledged that the Agency agreed to relocate CW1’s equipment workstation, However, Complainant asserted that CW1’s casing station was relocated directly behind her where CW1 could see her casing. Complainant explained that she felt unsafe and very upset knowing that CW1 was located behind her and reported this concern to the Postmaster who informed her to just “move on and just accept the solution.” The Postmaster explained that Complainant and CW1 used to work side-by-side, but she agreed to relocate CW1 after she learned that Complainant felt threatened and harassed by CW1. However, the Postmaster acknowledged that Complainant notified her that she did not like CW1’s new location because Complainant believed that CW1 could still view her from the new location. The Postmaster explained that CW1 was moved 35 feet away from Complainant and the two employees would not have been able to make eye contact from this distance. The Postmaster also noted that Complainant could not see CW1 because the back side of CW1’s casing station obscured her view and there was also equipment staged in between them. The Postmaster further explained that she offered to have a mirror mounted in Complainant’s casing area so she could see if anyone was approaching her from behind, but Complainant declined the offer. Officer-In-Charge Discussion (Claim D) The Postmaster denied sharing Complainant’s grievances with her co-workers. The Postmaster further denied saying that she wanted Complainant to “move on” because she was the problem. A copy of written notes exchanged between Complainant the Postmaster on February 15, 2018 indicate that the Postmaster stated to Complainant, “I don’t want you uncomfortable, but I want us to move on. I will not let her harm you in any way.” 2021000793 6 Mocking Faces/Parking Space Designation (Claim E) Complainant explained that on April 4, 2018, she was working on the dock and she saw CW1 speak to another clerk. Complainant asserted that CW1 was warning the clerk to keep an eye on her. Soon after, Complainant stated that the Postmaster gave her a “dirty look” and she confronted the Postmaster about the situation. The Postmaster stated that she tried to ensure Complainant that she did not look bad and no one thought that she was bad. The Postmaster explained that she was not trying to minimize Complainant’s her feelings. Rather, she wanted to ensure Complainant that she was safe. Additionally, notes exchanges between Complainant and the Postmaster indicate that the Postmaster had informed Complainant on February 15, 2018 that the postal vehicle parking spots at issue were assigned by route. Considering these claims, even if true, Complainant has not shown evidence that considerations of her disability or retaliatory animus motivated management’s actions toward Complainant. The record supports that management officials investigated the December 2017 incident and suspended CW1 fourteen days. Additionally, the record indicates that Complainant took a leave of absence after feeling dissatisfied with how the union processed her claim. The record also supports that management took additional steps once Complainant returned to the office and relocated CW1 35 feet away from Complainant and offered an additional solution (installation of the mirror) which Complainant declined. Aside from Complainant’s testimony, there is no other testimony corroborating that the Postmaster disclosed Complainant’s grievance with co-workers or that CW1 instructed another co-worker to watch Complainant. Lastly, the Postmaster explained to Complainant that the parking spots were assigned by route. Beyond her bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s disability or reprisal for prior protected EEO activity. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021000793 7 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. 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). 2021000793 8 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 June 14, 2021 Date