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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000843 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nieves P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000843 Hearing No. 420-2020-00139X Agency No. 4G-390-0105-19 DECISION On November 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 28, 2020 final action 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. BACKGROUND During the relevant period, Complainant worked as a Part-time Flexible Sales Services Distribution Associate ("PTF") at the Agency’s Washington Post Office in Washington, Missouri.2 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 As a Part-Time Flexible, Complainant’s schedule was subject to change. 2021000843 2 On August 7, 2019, Complainant filed a formal complaint claiming she was subjected to harassment/a hostile work environment based on sex (female) when: 1. on May 13, 2019, she was informed that her scheduled start time was changed from 7:00 a.m. to 7:30 a.m.; 2. on May 21, 2019, she was given an Investigative Interview and she was subsequently issued a Letter of Warning (“LOW”) dated May 29, 2019, for Unacceptable Conduct/Failure to Follow Instructions; 3. on May 31, 2019, she was given an Investigative Interview and subsequently issued a 7-Day Suspension on June 14, 2019 for Unacceptable Conduct/Failure to Follow Instructions; 4. on May 13, 2019 and ongoing, she is constantly being micromanaged; 5. on September 11, 2019, she was issued a Notice of Removal;3 and 6. on September 23, 2019, the Postmaster asked her if she had scanned distribution up after she had already informed her that she had done so but that there was a problem with the scanner, and she then instructed her to scan it up again and show her. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing. Complainant did not respond to the motion. On October 19, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final action implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS 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. 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. 3 As part of the grievance settlement, Complainant’s September 11, 2019 Notice of Removal was rescinded and Complainant was compensated for missed work. 2021000843 3 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. However, we have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant failed to establish a genuine dispute that required a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. To prove her harassment/hostile work environment 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 a protected basis - in this case, her sex. Only if Complainant establishes both of these elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). The record developed during the investigation establishes that during the relevant period Complainant was a Part-time Flexible Sales Services Distribution Associate at the Agency’s Washington Post Office in Washington, Missouri. The Postmaster was Complainant’s supervisor. No other employees worked in the Washington Post Office. On May 15, 2019, Complainant was provided a list of expectations for the Washington Post Office which included obeying all instructions of her supervisor and various cleaning duties. The AJ noted that the Employee and Labor Relations Manual states that employees are expected to discharge their assigned duties conscientiously and effectively. It also states that employees must obey the instructions of their supervisor. If an employee has reason to question the propriety of the order, the individual must nevertheless carry out the order. The employee may immediately thereafter either file a protest in writing to the official in charge of the installation, or appeal through official channels. Regarding claim 1, Complainant asserted that on May 13, 2019, she was informed that her scheduled start time was changed from 7:00 a.m. to 7:30 a.m., the AJ noted that the supervisor (female) stated that Complainant’s start time was changed from 7:00 a.m. to 7:30 a.m. because the mop used in the cleaning broke. Consequently, there were no mopping duties until the mop was replaced. She further stated that Complainant’s schedule was changed back once the new mop arrived. Regarding claim 2, Complainant alleged that on May 21, 2019, she was given an Investigative Interview and subsequently issued a LOW dated May 29, 2019, for Unacceptable Conduct/Failure to Follow Instructions. 2021000843 4 The supervisor acknowledged giving Complainant an Investigative Interview on May 21, 2019 for failure to follow instructions when she did not clean the office on May 14 and 17, 2019. Specifically, the supervisor stated that on May 14, 2019, “there were bugs and receipts on the front counter line floor and heavy dust under the floor mats on the counter line. On 5-17-19 there was dirt underneath mats.” Regarding claim 3, Complainant alleged that on May 31, 2019, she was given an Investigative Interview and subsequently issued a 7-Day Suspension on June 14, 2019 for Unacceptable Conduct/Failure to Follow Instructions. The supervisor stated that following the May 31, 2019 Investigative Interview, she issued Complainant a 7-Day Suspension dated June 14, 2019, for Unacceptable Conduct/Failure to Follow Instructions. For instance, the supervisor stated that on May 20, 2019, she received a customer complaint stating that [Complainant] refused to wait on a customer and advised customer that he would have to go to another Post Office to mail 21 certified letters and purchase 4 rolls of stamps because her printing was not working, thus causing the Washington Post Office a loss in revenue of $363.85.” Further, the supervisor stated that Complainant was instructed to move to another register and wait on the customer, but that, “however, [Complainant] did not move to the other register and wait on the customer. [Complainant] claimed that neither printer would work.” The supervisor stated that following an investigation, it was revealed that the printer never stopped working until Complainant disconnected both ends of the printer causing it to stop and the second printer did not have a printing problem. Regarding claim 4, Complainant claimed that on May 13, 2019 and ongoing, she is constantly being micromanaged. The supervisor explained that during the week of May 15, 2019, Complainant failed to scan the PO Box section on time and was 25 minutes late on May 14, 2019. As a result, the supervisor observed Complainant to find out what was causing her to be late and noticed that she was working extremely slow in comparison to her past work practices. Complainant asserted that the micromanagement consisted of the supervisor changing the schedule which cut down the time for her to clean and work the mail, standing over her as she did the mail, looking at her watch, instructing her to start mail differently, and telling her to do three or four different assignments at a time. According to the Senior Manager P.O. Operations of the Mississippi District (male) stated that at that time he was the Postmaster’s supervisor. He recalled during a mediation, Complainant felt that the Postmaster was being “nit picky” and expecting her to follow her instructions “were unnecessary, and that the postmaster was micro managing her, which to my knowledge is not a violation of any kind with the complainant being the only employee in the office.” 2021000843 5 In addition, the Senior Manager P.O. Operations stated “it was obvious to me that the complainant was trying ‘to grasp at straws’ to expunge the corrective action that had been issued to her in our mediation. The clerk was not following instructions and received action for this. Discrimination had nothing to do with the action.” Regarding claims 5 and 6, Complainant alleged that on September 11, 2019, she was issued a Notice of Removal and on September 23, 2019, the Postmaster asked her if she had scanned distribution up after she had already informed her that she had done so but that there was a problem with the scanner, and she then instructed her to scan it up again and show her. The supervisor indicated that she issued the Notice of Removal because Complainant had been issued prior discipline for similar circumstances - Unacceptable Conduct/Failure to Follow Instructions. For instance, the supervisor noted that Complainant was given a direct order to rescan the PO Box section barcode at 9:25 a.m. because it was showing as missing, that Complainant refused, and stated “I’m not going to scan it because it’s going to show up as late.” Complainant then locked her drawer in the safe and left the office because she was scheduled to leave at 9:30. The AJ noted that the record reflects that the August 23, 2019 Up Time Report indicated a missing scan for the Washington Post Office. The September 11, 2019 Notice of Removal indicated that on August 23, 2019 at 9:25. It was noted that the box-up scan was missing from the data report and Complainant was instructed to rescan the bar code but she refused to follow instructions. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her sex. Here, the preponderance of the evidence does not establish that the supervisors involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. 2021000843 6 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). 2021000843 7 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 February 2, 2021 Date