[Redacted], Rita F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020001628 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rita F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001628 Agency No. 4E-680-0007-19 DECISION On January 4, 2020, 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 December 23, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate, 05/Y, at the Agency’s Post Office in Sterling, Kansas. On January 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (autism and sensory processing disorder) and reprisal for prior protected EEO activity when: 1. Complainant’s coworkers made rude comments to Complainant in regard to her disability and refused to vacate Complainant’s case when ordered; 2. On October 31, 2018, Complainant was put on Emergency Placement Without Pay for physically contacting another employee; 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. 2020001628 2 3. On November 15, 2018, Complainant was subjected to an Investigative Interview; 4. On November 30, 2018, Complainant was issued a Notice of Removal; 5. On January 17, 2019, Complainant’s Postmaster made false claims and accused Complainant of going over his head; 6. On or about January 22, 2019, Complainant was singled out when her schedule was changed.2 Complainant affirmed that her condition is Autism (Asperger's), with comorbidities, including sensory processing disorder. Regarding Claim (1), on September 27, 2018, Complainant’s coworker (CW1) was pushing an empty piece of equipment toward Complainant. Complainant stated that the noise of the equipment was an “auditory assault” and hurt her ears even with the hearing protection she wears. Complainant asserted that as a result of the noise, she stopped what she was doing and stood in the doorway with her ears covered. Complainant claimed that CW1 told Complainant to move out of the way and Complainant did not know what to do, so she just stood in the doorway. Complainant alleged that CW1 replied that she was “just doing her job,” and yelled at Complainant to get out of the way. Complainant stood there with her ears covered and did not move and CW1 eventually left. Complainant claimed that CW1 later made derogatory comments toward her about her condition as she was walking to her vehicle, saying it was all in her head and that she needed help, suggesting that there was nothing wrong with Complainant and that she was making everything up. Complainant complained to the Postmaster. The Postmaster spoke with CW1 who denied making any of the comments. As to Claim (2), on October 31, 2018, CW1 claimed that Complainant pushed her way into the case and then pushed her. Complainant denied that this occurred. The Postmaster placed Complainant in Emergency Placement Without Pay status as a result of the incident due to allegations that Complainant “may be injurious to others.” Regarding Claim (3), on November 15, 2018, Complainant attended an investigative interview regarding the incident with CW1 which she called a “sham.” Complainant alleged that the Postmaster kept interrupting her, cutting her off, shutting her down, and otherwise silencing her. Complainant claimed that she was not permitted to give her side during the investigative interview and that the Postmaster tried to repeatedly end the interview claiming Complainant raised her voice. Complainant denied pushing CW1. With respect to Claim (4), the Postmaster completed a Disciplinary Action Proposal form prior to removing Complainant in which he explained that CW1 was at her mail case, when Complainant arrived to work. While CW1 was at the case, Complainant “shoved [CW1] with the right side of her body to get to the case and then reached to turn off the light at the case making a second contact to [CW1].” 2 The Agency dismissed several additional claims for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1) and as an improper “spin off” complaint pursuant to 29 C.F.R. § 1614.107(a)(8). Complainant raised no challenges regarding these claims and the Commission can find no basis to disturb the dismissal of these claims. 2020001628 3 The Postmaster noted that the event had witnesses, and that employees in the facility were afraid of what might happen next. CW1 also filed a police report alleging battery. Therefore, the Postmaster concluded that Complainant should be terminated for her conduct. The Notice of Removal informed Complainant that she violated the Agency’s Zero Tolerance Policy on Violence in the Workplace based on the event as explained above. As explained in the Notice, during the investigative interview, Complainant denied the event occurred or that there was any physical contact. Upon hearing that there were witnesses, Complainant claimed that others were lying. The Postmaster said that Complainant accused others of lying instead of taking responsibility for her actions, which in turn raised concerns regarding Complainant’s trustworthiness, honesty, reliability, and ability to comply with Agency regulations. Accordingly, Agency management decided to remove Complainant from service. The Human Resources Official (HRO) who worked on Complainant’s removal asserted that the removal was solely grounded in the Agency’s zero tolerance policy. On January 14, 2019, the Agency settled a grievance with Complainant regarding her removal. Pursuant to the terms of the settlement, the Notice was rescinded and reduced to a seven-day suspension. Complainant received back pay and was returned to service at the facility. As to Claim (5), Complainant returned to work on January 17, 2019, and alleged that the Postmaster “yet again made false claim after false claim, especially about ‘respect.’ He also said, again, that I ‘kept going above his head.’” Complainant asserted that the Postmaster was retaliating against her. Regarding Claim (6), prior to her return to work, Complainant said she had exact starting times, and would get in trouble if she reported to work “even a minute or a few seconds before the schedule time.” After she returned, Complainant explained that when she carried her route by herself, she began work at 7:00 a.m. However, when CW1 was on light duty, Complainant’s start time kept getting changed. Complainant noted that her start time was pushed forward to 9:00 a.m., and then to 9:30 a.m., then to 10:00 a.m. The Postmaster explained that Complainant’s schedule was changed because of CW1’s job modifications or limited availability. The Postmaster noted that CW1 has since retired. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. The instant appeal followed. 2020001628 4 ANALYSIS AND FINDINGS Disparate Treatment - Claims (2) - (4), (6) To prevail in a disparate treatment claim, Complainant 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. Corp. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this matter, Complainant was put on emergency placement, given an investigative interview, and then removed because of an allegation that she engaged in unwanted physical conduct against CW1 in violation of the Agency’s policies. Agency management asserted that they made this decision based on witness and police reports. The Postmaster also explained that Complainant’s start time changed to accommodate CW1’s start time when CW1 was placed on limited medical duty. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant focuses her efforts on arguing that CW1 and the witnesses are lying. 2020001628 5 However, these efforts do not demonstrate that Agency management’s reasons for taking actions are false or unworthy of belief. Accordingly, Complainant has not proven that she was subjected to discrimination or reprisal as alleged.3 Hostile Work Environment To establish a hostile work environment claim, 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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 a protected y. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Specifically, Complainant provided no corroboration to demonstrate that CW1 uttered the statements as alleged, or that the Postmaster disparaged her. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. Accordingly, Complainant has not shown by a preponderance of the evidence that she was subjected to a discriminatory or retaliatory hostile work environment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 3 We note that there is some discussion in the record that Complainant had a reasonable accommodation from the Agency. However, Complainant does not specifically allege that she was denied a reasonable accommodation, nor is there evidence in the record of what the accommodation was. Accordingly, the issue is not properly before us and we will not address the matter further. 2020001628 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). 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. 2020001628 7 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 September 2, 2021 Date