[Redacted], Peggie T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020002904 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Peggie T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002904 Agency No. 4F-945-0048-19 DECISION On February 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 6, 2020 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Postmaster at the Agency’s Martinez Post Office in Martinez, California. On July 15, 2019, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), age (over 40), and in reprisal for prior EEO activity (Agency No. 4F-945-0065-18)) when: 1. beginning on or about February 2, 2019 and continuing, her request for a harassment investigation into her allegations had not been provided; 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. 2020002904 2 2. on February 6, 2019, the Manager Post Office Operations visited her facility without providing her with notification; 3. on February 6, 2019, the Manager of Marketing informed her that he overheard the District Manager and Manager Post Office Operations mention her name; 4. on February 8, 2019, she was asked to attend a safety talk; 5. on February 8, 2019, after informing the Manager Post Office Operations that she did not feel comfortable with her, the Manager Post Office Operations continued talking and followed Complainant into an elevator; 6. on or about February 11, 2019, she was involuntarily assigned to a developmental detail in Labor Relations; 7. since approximately June 14, 2019 and continuing, her Manager, Post Office Operations has failed to process a pay adjustment for the 32 hours of Leave Without Pay (LWOP) that she was charged in Week 1 of Pay Period 12; and 8. on July 17, 2019, despite being medically able to return to the Martinez Post Office, she was assigned to Labor Relations in Oakland, which involved a commute that violated her medical restrictions. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on February 6, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020002904 3 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant asserted that beginning on or about February 2, 2019 and continuing, her request for a harassment investigation into her allegations has not been provided. The Manager, Human Resources (HR Manager) (Hispanic, female, over 40) stated that on February 2, 2019, she received an email requesting an investigation of Complainant’s harassment claims. Specifically, the HR Manager stated that Complainant claimed that she was harassed by the District Manager and the Manager, Post Office Operations. Thereafter, the HR Manager conducted a preliminary investigation while waiting for more specific information from Complainant. However, Complainant never responded to requests for information which the HR Manager said prevented a more thorough inquiry of her harassment claims. Moreover, the HR Manager stated that she was unable to find any evidence of harassment or corroborate any of the “vague” allegations. Regarding claim 2, Complainant alleged that on February 6, 2019, the Manager, Post Office Operations visited her facility without providing her with notification. The Manager Post Office Operations (“Manager”) stated that she has twenty-two offices that she visits without prior notification. She further stated that she is not obligated to notify Complainant when she plans to visit her facility. The District Manager explained that Managers of Post Office Operations visit offices on a regular basis without any notification and they are visiting facilities to review performance, to review the workroom floor and provide direction. The Postmaster of the District Office explained that that his visit to the Bay-Valley District Safety Engagement Coordinator was to observe a safety campaign that was being conducted. He further stated that there is no rule or regulation to notify any installation head that a visitation has to be permitted to conduct observation. 2020002904 4 Regarding claim 3, Complainant alleged that on February 6, 2019, the Manager of Marketing informed her that he overheard the District Manager and Manager mention her name. The Manager explained that she and the District Manager were gathering paperwork for the Martinez Post Office, and not for Complainant, in an effort to get ahead of any potential congressional issues. She noted that the Martinez Post Office had several congressional issues and the District Manager asked her, the Manager, if she had access to see customer complaints in the system. Furthermore, the Manager asserted that no other employee witnessed this conversation. Regarding claim 4, Complainant claimed that on February 8, 2019, she was asked to attend a safety talk. The Manager explained that all Managers, Post Office Operations were to bring a Postmaster in each Friday to discuss their safety activities for the week. She explained that Postmasters were rotated who had a safety record below target and it was her decision to invite Complainant as her visiting Postmaster for that week. The District Manager acknowledged that the safety talk meetings were getting too lengthy with additional managers so for this particular meeting, he sent out a message not to have the managers attend but Complainant reported anyway for the meeting not knowing that she had been excused. Regarding claim 5, Complainant asserted that on February 8, 2019, after informing the Manager Post Office Operations that she did not feel comfortable with her, the Manager Post Office Operations continued talking and followed her into an elevator. The Manager asserted that on February 8, 2019, Complainant asked her to come out of the District Manager’s office to have a word with her. She stated that Complainant claimed she was uncomfortable because they were having a conversation which she initiated and since Complainant asked her to join her in the hallway and she accompanied Complainant to the elevator. The Manager explained that because Complainant stated that she felt uncomfortable, she asked her who was making her feel uncomfortable. Regarding claim 6, Complainant claimed that on or about February 11, 2019, she was involuntarily assigned to a developmental detail in Labor Relations. The Manager stated that it was her decision to issue a letter to Complainant dated February 11, 2019, assigning her to a developmental assignment in Labor Relations. At that time, the Manager collaborated with the District Manager, HR Manager, and Labor Relations. They decided that Complainant would be provided training in the area of concerns with the Agency’s success, and grievances were one of the areas that Martinez Post Office had struggled with. The Manager also noted that Complainant needed training in the grievance process because of excessive grievances that went to Formal A without management’s position. 2020002904 5 Regarding claim 7, Complainant alleged that since approximately June 14, 2019 and continuing, her Manager, Post Office Operations has failed to process a pay adjustment for the 32 hours of Leave Without Pay (LWOP) that she was charged in Week 1 of Pay Period 12. The Manager asserted that she processed Complainant’s pay adjustment for 32 hours of LWOP in Week 1 Pay Period 12, and it was processed on October 9, 2019. The Manager acknowledged an “honest” oversight on her part but that she has given Complainant opportunities on many occasions when she provided her request after the time had closed and she entered Complainant’s sick leave request. Moreover, the Manager averred that Complainant has not been “above board” in giving her requests in a timely manner, but that the Manager has processed all of Complainant’s time. Regarding claim 8, Complainant alleged that on July 17, 2019, despite being medically able to return to the Martinez Post Office, she was assigned to Labor Relations in Oakland, which involved a commute that violated her medical restrictions. The Manager stated that she assigned Complainant’s original development details to begin on February 12, 2019. However, Complainant never fulfilled the assignment. The record supports a find that when Complainant balked at the assignment, the Agency did not press her into pursuing it. Specifically, an Agency official stated that “[Complainant] never reported to the [Oakland assignment.” Moreover, the record contains nothing indicating that Complainant received any sanctions or discipline due to her not reporting for this assignment. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. There is no evidence of any other similarly situated employee who was treated more favorably. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Complainant, as indicated above, simply has provided no evidence to support her claim that her treatment was the result of her race, sex, age, and/or prior EEO activity. To the extent that Complainant’s claims can also be construed as one of ongoing discriminatory harassment/hostile work environment, this claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000) Reasonable Accommodation We note that the Agency used a reasonable accommodation analysis regarding the matter raised in Claim 8 (the Oakland detail). As noted above, however, Complainant declined the detail and the Agency apparently did not further pursue the matter. Arguably, a reasonable accommodation analysis of this claim is not particularly germane under these circumstances. However, we will briefly address this issue. 2020002904 6 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. Here, Complainant claimed that she was denied reasonable accommodation during the relevant period. When asked what work restrictions or limitations she had as a result of her medical condition, Complainant referred to the medical documentation dated June 3, 2019. Complainant averred that she is able to perform many duties and when asked what duties she was required to perform on a daily basis, she again referred to the June 3, 2019 medical documentation. The record contains a copy of the June 3, 2019 medical documentation which indicated that Complainant is off work from June 3, 2019 through June 17, 2019. The doctor averred that Complainant was placed on modified activity at work and at home from June 18, 2019 through July 17, 2019. The weight of the evidence supports the Agency’s finding that Agency management accommodated Complainant, the record reflect that Complainant was off from work from June 3, 2019 through June 17, 2019, and was placed on modified activity at work and at home from June 18, 2019 through July 17, 2019. In claim 6, complainant was apprised of assignment to a developmental detail back in February 2019. In claim 8, she was actually assigned to the Oakland detail, which she refused to accept. There is no evidence of record to dispute this assertion. Here, the evidence supports the Agency’s conclusion that Complainant was provided an effective accommodation within the medical restrictions provided by Complainant’s doctor to management. We find that Complainant is not entitled to the accommodation of her choice. See e.g., Casteneda v. U.S. Postal Service, EEOC Appeal No. 01931005 (1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). Complainant has not presented arguments or evidence showing that other work was available that she could perform, with or without accommodation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record 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. 2020002904 7 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). 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. 2020002904 8 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