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

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020002433 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nina M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020002433 Hearing No. 490-2020-00007X Agency No. 4C-370-0032-19 DECISION On March 9, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 13, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are whether the Agency was entitled to a grant of its motion for summary judgment as a matter of law and whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to a hostile work environment and discrimination based on reprisal for her protected EEO activity. 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. 2020002433 2 BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as a Lead Sales and Services Associate at the Agency’s Hollywood/Binghamton facility in Memphis, Tennessee. On May 3, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her based on reprisal for her prior protected EEO activity, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq, when: 1. on January 14 and 15, 2019, and February 6, 2019, Complainant was denied breaks and lunches; 2. on December 3, 2018 through January 16, 2019, the Supervisor yelled “derogatory things” at Complainant on the workroom floor; followed her around; micro-managed her; and got in her “personal space;” 3. on December 3, 2018, the Supervisor would not allow her to attend a meeting with her coworkers; 4. on April 15, 2019, Complainant was issued a Letter of Warning (LOW); and, 5. on April 22, and 25, 2019, Complainant was charged with Leave Without Pay (LWOP). The investigative record reflects the following pertinent matters relating to the subject claims. On January 14 and 15, 2019, and February 6, 2019, Complainant alleged that she was denied breaks and lunches by the Supervisor. Complainant also alleged that the Manager of Customer Service was also involved in keeping her from her breaks and lunches. Complainant noted that this was a common occurrence. The Supervisor stated that, on or about January 16, 2019, Complainant was the only retail clerk working the customer service window when she closed the window without permission to go on break. The Supervisor found Complainant at her car and instructed her to go back to the window. The Supervisor stated that the facility had frequent staffing issues and noted that Complainant was the only retail clerk. Therefore, Complainant was sometimes asked to forgo a break and/or lunch if she could not be provided with relief through a manager. The Supervisor stated that in those instances, Complainant agreed to work through breaks and/or lunches and leave early. The Supervisor asserted that Complainant was never intentionally denied her breaks or lunches without good cause. On December 3, 2018 through January 16, 2019, Complainant asserted that the Supervisor yelled “derogatory things” at her on the workroom floor; followed her around; micro-managed her; and got in her “personal space.” Complainant did not provide examples of the alleged “derogatory things,” but asserted that the Supervisor was hostile, belittled her, and verbally attacked her in front of customers and other employees. Complainant asserted that the Supervisor also excluded her from meetings such as the meeting on December 3, 2018. 2020002433 3 Complainant argued that as a union representative, she should have been allowed to attend the meeting but was discriminatorily denied. The Supervisor denied the allegations of hostility, micromanagement, and yelling derogatory statements at Complainant. The Supervisor stated that she could not recall the December 3, 2018, meeting or intentionally and aggressively barring Complainant from any such meetings. The Supervisor asserted that Complainant’s general complaints of her management style is nothing more than her doing her job and supervising employees. On March 21, and 27, 2019, Complainant failed to follow instructions when she was dealing with Hazmat Responses for customers. Specifically, protocol required that customers provide the response when it comes to potentially hazardous material being mailed. However, Complainant was knowingly providing the responses on behalf of the customers. The Supervisor stated that Complainant was aware of the Hazmat Response procedures, having completed the required training and having been instructed on numerous occasions regarding her responses. Due to the safety issues in introducing potentially hazardous mail/packages into the mail stream, it is pertinent that all employees follow the appropriate hazmat questioning/procedures. The Manager noted that Complainant answered eight Hazmat Responses on March 21, 2019, and fourteen Hazmat Responses on March 27, 2019, in lieu of the proper procedure. On March 29, 2019, the Supervisor conducted an Investigative Interview regarding the incidents. On April 16, 2019, Complainant was issued a Letter of Warning (LOW) for Failure to Follow Instructions by the Supervisor. The Supervisor stated that this was based solely on the March 2019 incidents. The Supervisor denied issuing the LOW for anything other than Complainant’s failure to follow Agency instructions regarding proper procedure when collecting Hazmat Responses from customers. Through the grievance procedure, this was later reduced to an Official Discussion On April 22, and 25, 2019, Complainant was charged with LWOP. Complainant stated that she submitted PS Form 3971 for Leave on the Job Injury Continuation of Pay which the Supervisor failed to process, and then later falsified. The Supervisor asserted that Complainant was mistakenly charged with LWOP because she made an unintentional error. This was later corrected when the error was discovered. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On January 21, 2020, the Agency timely filed a Motion for a Decision Without a Hearing. Complainant did not file a response brief. On February 11, 2020, the AJ issued a decision without a hearing in favor of the Agency. On February 13, 2020, the Agency subsequently issued a final decision affirming the AJ’s finding of no discrimination. 2020002433 4 CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency’s reasons were pretext for discrimination. For example, Complainant asserts that there was no reason why she could not attend the meeting as it started prior to the window opening for customers. Complainant argues that the Agency’s reason that the office was short-staffed and, therefore, required Complainant to work the window was merely pretext. Complainant notes that she was rudely prevented from attending the meeting and the Supervisor intentionally slammed the door on her, hitting her in the face. Complainant also notes that she is a lead clerk, and, as a lead clerk, should be allowed at any and all clerk related meetings. Complainant also asserts that the Supervisor is constantly harassing her and micromanaging her work. Complainant notes that the environment is extremely hostile, and that she is constantly overworked without her breaks or lunches. In response, the Agency argues that Complainant fails to provide any evidence demonstrating a nexus between her prior EEO activity and the Agency’s actions. The Agency argues that Complainant has provided nothing beyond unsupported speculation and conjecture that her prior EEO Activity played any role in the issues raised in this case. Because there is no evidence that her prior EEO activity was a factor in any action taken with respect to Complainant, the Agency argues that her claim of retaliation is not actionable. The Agency requests the Commission to affirm its final decision. STANDARD OF REVIEW 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 (EEO MD-110) 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”). ANALYSIS AND FINDINGS Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2020002433 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant failed to do so. Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment For Complainant to prevail on her claim of disparate treatment, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the Agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2020002433 6 The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). Assuming, arguendo, that Complainant has established a prima facie case of reprisal discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, in claim 1, Complainant asserted that management frequently denied her breaks and lunches in retaliation. The Supervisor stated that the facility had frequent staffing issues and noted that Complainant was the only retail clerk, periodically. Therefore, Complainant was sometimes asked to forgo a break and/or lunch if she could not be provided with relief through a manager. However, when this occurred, Complainant was provided with the alternative to leave work early. Therefore, even if the Complainant was asked to work through breaks and/or lunches, there is no evidence that this was done in retaliation for her past protected EEO activity. Regarding the April 16, 2019 Letter of Warning (LOW) that Complainant received (claim 4), the Agency has also provided a legitimate nondiscriminatory reason for the action. Specifically, the Manager and the Supervisor noted that Complainant had answered the Hazmat Responses on behalf of customers on several occasions in March 2019. Based on her failure to follow the Agency’s safety protocols regarding Hazmat Response collection Complainant was subject to the Investigative Interview which ultimately lead to the LOW. We note that during the Investigative Interview she acknowledged that she answered Hazmat Responses. There is no indication that the LOW was issued in retaliation. Lastly, on April 22, and 25, 2019, Complainant was charged Leave Without Pay (LWOP) (claim 5). In this incident, the Supervisor acknowledged that she made the error that resulted in the LWOP. However, once the error was discovered, the Supervisor took actions to remedy the situation. There is no evidence that the Supervisor intentionally charged Complainant LWOP as a form of retaliation. Here, as detailed by the record and in the AJ’s decision, the record supports the AJ’s determination that the Agency’s proffered reasons were legitimate and nondiscriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s action was pretext for retaliation. 2020002433 7 Hostile Work Environment In considering whether any of the actions listed by Complainant, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct; (3) the harassment complained of was based on a statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)). In reviewing this matter, it is clear that Complainant viewed her relationship with management as contentious, however we note that the discrimination statutes are not a civility code. What is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). In addition to the claims above, Complainant asserted that the Supervisor was particularly hostile towards her. For example, Complainant asserted that the Supervisor yelled “derogatory things” at Complainant on the workroom floor; followed her around; micro-managed her; and, got in her “personal space” (claim 2). Yet, Complainant did not provide any evidence of such behavior, nor did she detail what “derogatory” statements were made towards her. Nonetheless, Complainant asserted that the Supervisor was often aggressive and noted that on December 3, 2018 (claim 3), the Supervisor refused to let her attend a staff meeting both as a clerk and union representative.2 Complainant asserted that the Supervisor aggressively and rudely slammed the door in her face. In support of this claim of hostility, Complainant provided two statements from her coworkers on appeal. The two witnesses provided statements asserting that the Supervisor slammed the door on Complainant prior to the December 3, 2018 meeting.3 2 Additionally, to the extent that Complainant is alleging retaliation as connected to her status as a union representative, we note that the Commission has previously held that union activity does not qualify as protected EEO activity where there is no evidence that the union activity involved an EEO matter. Rivera v. U.S. Postal Serv., EEOC Appeal No. 01A33897 (Jan. 7, 2005). Here, there is no indication in the record that the December 3, 2018, meeting regarded EEO matters or that a union representative was necessary for the meeting. 3 The EEO Investigator noted that she did not find the suggestion of these two witnesses to be relevant to the accepted issues, or to be determinate of any material fact in dispute. Complainant provided signed statements from these two witnesses on appeal. 2020002433 8 Even in viewing these statements in a light most favorable to Complainant, the record still would not demonstrate that she was subjected to an objectively hostile work environment based on her protected EEO activity. While slamming a door on an employee may not be considered a good management practice, based on the record before us, we find that this single incident does not create an objectively hostile work environment. We note that the discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005). Not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). The Commission also recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). Moreover, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s prior EEO activity played any role in the Agency’s actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final 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. 2020002433 9 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). 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. 2020002433 10 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 September 13, 2021 Date