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

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020003357 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Selma D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020003357 Hearing No. 540-2019-00052X Agency No. 4E-852-0049-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 6, 2020, final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected her to discrimination or harassment based on disability, race, or sex, or in reprisal for prior 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. 2020003357 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Agency’s Holbrook Post Office in Holbrook, Arizona. Complainant stated that on October 24, 2017, the Post Office Operations Manager (POOM) (Caucasian, female) falsely informed her that she was the subject of an Office of Inspector General (OIG) investigation. Report of Investigation (ROI) at 193. Complainant stated that on December 7, 2017, she requested annual leave for December 26, 2017, which POOM denied. Complainant stated that on December 26, 2017, she felt ill and called in sick. Complainant stated that she was still feeling ill the following day but came into work. Complainant stated that POOM placed her on administrative leave for the remainder of the day and scheduled a meeting for December 28, 2017. ROI at 139-40. Complainant stated that, during the fact-finding meeting on December 28, 2017, POOM requested that Complainant provide medical documentation for her absence on December 26, 2017, but later “denied” it because Complainant’s doctor did not state the nature of her illness. ROI at 146. Complainant stated that, on unspecified dates, she traveled over the requirement for an overnight stay and a per diem but POOM denied her “e-pay travel.” ROI at 152-3. Complainant stated that on January 3, 3018, POOM assigned her to the Flagstaff Office. Complainant stated that soon after, on an unspecified date, POOM restricted Complainant’s access to her emails. ROI at 168. Complainant stated that on January 22, 2018, POOM instructed her to relinquish her office. ROI at 167. Complainant stated that POOM denied her leave request for January 24-26, 2018. Complainant stated that she originally approved her own leave and submitted a note from her doctor, but POOM informed her that her doctor’s note did not meet the Employee and Labor Relations Manual (ELM) requirements. ROI at 171-2. Complainant stated that POOM shared her medical documentation with others on January 29, 2018. ROI at 191. Complainant stated that on February 12, 2018, she was placed under stricter scrutiny and assigned to the rural counts team without adequate training. ROI at 175. Complainant stated that on February 13, 2018, and April 12, 2018, she was subjected to fact-finding conferences. ROI at 180. Complainant stated that starting March 22, 2018, she was ordered to conduct street observations under adverse conditions. Specifically, Complainant stated that she utilized a Winslow Post Office vehicle, but on March 22, 2018, the acting Flagstaff Postmaster (FP) (Caucasian, female) instructed her to use a Flagstaff vehicle. Complainant stated that she heard a beeping noise in the car and found a scanner in the trunk, which was used to track her without her consent. Complainant also stated that she was instructed to use a new phone app to locate carriers to conduct street observations. ROI at 182-4. On April 13, 2018, POOM placed Complainant on administrative leave, pending an administrative decision on her case; and Complainant stated that she was walked off the workroom floor. ROI at 187, 522. 2020003357 3 On June 28, 2018, POOM issued Complainant a Notice of Proposed Removal for five specifications of Failure to Meet the Duties and Responsibilities of [Complainant’s] Position and three specifications of Unacceptable Conduct.2 ROI at 272-85. EEO Complaint On April 4, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (Hispanic),3 sex (female), and disability (undisclosed), and in reprisal for prior protected EEO activity (instant EEO complaint initiated on December 28, 2017), when: 1. on December 27, 2017, Complainant was placed on administrative leave; 2. on unspecified dates, management did not accept Complainant’s medical documentation; 3. on unspecified dates, Complainant was instructed to provide management with her private medical information; 4. on unspecified dates, Complainant was not allowed e-travel pay; 5. on unspecified dates, Complainant’s access to crucial, job-related emails was restricted; 6. on January 22, 2018, management instructed Complainant to relinquish her office; 7. on or around January 24, 2018, management denied Complainant’s request for leave; 8. on or around February 12, 2018, Complainant was placed under stricter scrutiny and assigned to the rural counts team without adequate training; 2 The Agency mitigated the proposed removal and downgraded Complainant to a Part Time Flexible Sales and Service Distribution Associate/Clerk. Complainant appealed the downgrade to the Merit Systems Protection Board (MSPB). Complainant requested a petition for review of the MSPB’s decision, which was addressed in Wanita Z. v. U.S. Postal Serv., EEOC Petition No. 2020003084 (Sept. 16, 2020). The Agency subsequently rescinded the proposed removal and downgrade and issued Complainant a Notice of Proposed Reduction in Grade and/or Pay, which it sustained. Complainant appealed the downgrade to the MSPB, which affirmed the Agency’s downgrade. Complainant requested a petition for review of the MSPB’s decision, and the Commission will be address this separately in EEOC Petition No. 2021002593. 3 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of her race as Hispanic. 2020003357 4 9. on February 13, 2018, and April 12, 2018, Complainant was subjected to fact-finding conferences; 10. on March 22, 2018, Complainant was ordered to do street observations on letter carriers in Flagstaff under adverse conditions; 11. on April 13, 2018, Complainant was walked off the workroom floor and placed on administrative leave; 12. on unspecified dates, management disclosed Complainant’s private medical information; and 13. on unspecified dates, management falsely informed Complainant that she was the subject of an OIG investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that claim 8 did not occur and that claims 9, 10, 12, and 13 were not discrete acts. The Agency assumed a prima facie case of discrimination and found that management officials articulated legitimate, nondiscriminatory reasons for claims 1-7, and 11. The Agency then found that Complainant did not show pretext for discrimination. For claim 3, the Agency found that POOM’s request for additional medical information was not an improper medical inquiry because it was job-related and consistent with business necessity to determine if Complainant’s absence was reasonable and necessary. The Agency also found that POOM did not improperly disclose Complainant’s medical information (claim 12) because the documentation did not include Complainant’s diagnosis, symptoms, or treatment. The Agency also determined that Complainant did not establish a hostile work environment. The Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal but did not provide a statement in support of her appeal. On December 14, 2020, the Agency filed a Motion to Dismiss, stating that Complainant filed a complaint in the Federal District Court alleging discrimination. The Agency asserts that, since Complainant elected to bring her claims to federal court, her appeal should be dismissed. 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). 2020003357 5 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 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 Claims On October 15, 2020, Complainant filed a Civil Action (No. 3:20cv8267) in the United States District Court for the Arizona District, Phoenix Division. A review of Complainant’s civil action reveals that she alleged retaliation and retaliatory harassment for opposing discrimination based on race and sex in violation of Title VII, for some of the claims raised in the instant complaint. Specifically, we find that claims 1-3, 5, 7, and 9-11, are covered by the civil action. Therefore, we dismiss these claims based on retaliation pursuant to the Commission’s regulations at 29 C.F.R. § 1614.409, which provides that the filing of a civil action “shall terminate Commission processing of the appeal.” Commission regulations mandate dismissal of the identified EEO complaints under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep’t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). However, the instant decision will address Complainant’s allegations of discrimination based on disability, race, and sex for all claims; and allegations of retaliation for claims 4, 6, 8, 12, and 13 because they were not included in Complainant’s civil action. Medical Inquiry (Claim 3) Complainant alleged discrimination when she was instructed to provide management with her private medical information. However, the Commission has found that an employer may ask an employee to justify his/her use of sick leave by providing a doctor’s note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA) (Enforcement Guidance), No. 915.002, at question 15 (July 26, 2000). In this case, Complainant requested sick leave for December 26, 2017, and January 24-26, 2018. POOM stated that she requested medical documentation pursuant to ELM 513. ROI at 219. 2020003357 6 We find that POOM’s requests were based on a policy for all employees to provide medical documentation to support sick leave requests. Accordingly, we find that the Agency did not act improperly when it requested that Complainant provide medical documentation for her sick leave requests. Medical Disclosure (Claim 12) Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see also 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See Enforcement Guidance at 4. Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; first aid and safety personnel may be told if the disability might require emergency treatment; and government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1). Complainant stated that POOM shared her medical documentation to an unnamed notetaker of the fact-finding conference on December 28, 2017, and to other managers on January 29, 2018. ROI at 191. However, even if POOM shared Complainant’s medical documentation with others, we find that the medical documentation did not reveal Complainant’s medical condition or history. Specifically, the December 26, 2017 document stated that Complainant had an unidentified illness; the January 12, 2018 documents stated that Complainant had an appointment that was “essential to her health” and lab work following her appointment; the January 24, 2017 document stated that Complainant had an unidentified illness;4 and the January 29, 2018 document stated that Complainant had a “medical diagnosis” that was not identified due to “HIPAA privacy.” ROI at 468, 445-6, 475, 478. Accordingly, we find that there was no improper disclosure of Complainant’s medical information. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). 4 The doctor’s note appears to be erroneously dated January 24, 2017, and it should be 2018. 2020003357 7 If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Complainant may establish a prima facie case of discrimination by providing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted). We find that Complainant did not establish a prima facie case of discrimination for claim 4 because she did not establish that she suffered an adverse action. We note that Complainant did not identify the dates of the alleged discriminatory actions, only stating that the dates were “in postal documents,” and that she was unsure of the amount of pay. In addition, while Complainant named FP as a comparator, who was allegedly treated more favorably, Complainant responded “N/A” when asked about the specifics of FP’s circumstances. ROI at 153-5. We also find that Complainant did not show that the circumstances surrounding the alleged adverse action gave rise to an inference of discrimination. Accordingly, we find that Complainant did not establish a prima face case of discrimination for claim 4. Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, race, and sex for claims 1, 2, 5-11, and 13; and retaliation for claims 6, 8, and 13, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, POOM stated that she placed Complainant on administrative leave on December 27, 2017, due to a pending investigation and investigative interview scheduled for December 28, 2017. ROI at 207. In the proposed removal, POOM noted that Complainant requested annual leave for December 26, 2017, which she denied on December 18, 2017, because Complainant did not provide a suitable plan to ensure that operational needs would not be impacted by Complainant’s absence. POOM stated that on December 22, 2017, she conducted a video conference with Complainant and gave her a direct order to report to work on December 26, 2017. POOM noted that approximately two hours after their meeting, Complainant posted an updated schedule, showing that she was scheduled for annual leave on December 26, 2017. Further, on December 23, 2017, Complainant drove to a City Carrier’s home to drop off the keys to the Holbrook Post Office and told the carrier to report to work on December 26, 2017. ROI at 272-3. 2020003357 8 Regarding claim 2, POOM stated that she reviewed Complainant’s submitted medical documentation, which failed to meet ELM 513 requirements. ROI at 213. The record shows that ELM 513.364 states that medical documentation “should provide an explanation of the nature of the employee’s illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her normal duties for the period of absence.” ROI at 657. For claim 5, POOM stated that Complainant was removed from her Holbrook Post Office email account because she was not administratively responsible for its operations, pending the investigation. POOM noted that Complainant remained on the district email accounts. ROI at 227. Regarding claim 6, POOM stated that she asked Complainant to relinquish her office due to her temporary assignment to the Flagstaff Post Office. ROI at 231-2. For claim 7, POOM stated that Complainant did not have the authority to approve her own leave, and that Complainant’s request did not meet ELM 513 for requesting leave. ROI at 235. Regarding claim 8, POOM stated that Complainant was assigned to rural counts due to the needs of the Postal Service. ROI at 243. FP stated that Complainant was not under stricter scrutiny, and that “she pretty much did what she wanted.” FP stated that Complainant called in sick on the date of the rural counts training, and that FP personally trained Complainant when she returned to work. FP also noted that there were “cheat sheets” available for all the counters, and that written instructions were at the rural count workstation. ROI at 291-4. For claim 9, POOM stated that the investigative interviews on February 13, 2018, and April 12, 2018, were follow-ups from the December 28, 2017 investigative interview. ROI at 252. The proposed removal noted that, on February 13, 2018, Complainant was given opportunities to explain her failure to follow proper procedures to report missing money orders and her contact of employees in an attempt to obtain information about the specific questions that would be asked at her December 28, 2017 fact-finding meeting. During the fact-finding meeting on April 12, 2018, Complainant was given an opportunity to respond to discrepancies between her self- reported location data and the GPS scanner information. ROI at 275-9. Regarding claim 10, FP stated that there were no adverse conditions. FP stated that Complainant was instructed to use a Flagstaff vehicle due to the gas expense at the Winslow Post Office for the time she worked at Flagstaff. FP stated that Complainant used the same app that she used daily at the office and no additional training was needed. FP stated that Complainant was instructed to conduct 5-6 street observations, but only conducted 2-3. FP noted that she found this strange because Flagstaff was not that big, and Complainant had 5 to 5½ hours to complete the observations. ROI at 302. For claim 11, POOM stated that she placed Complainant on administrative leave and walked her off the workroom floor pending an administrative determination on Complainant’s case related to allegations of a failure to perform duties and unacceptable conduct. ROI at 259-60. Regarding claim 13, POOM denied falsely informing Complainant that she was the subject of an OIG investigation, but stated that she informed Complainant that there was an OIG inquiry and that Complainant should ensure that she was following postal procedures. ROI at 267. 2020003357 9 We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Here, Complainant did not provide any arguments on appeal. In addition, a review of Complainant’s affidavits show that she made bare assertions of being targeted because she was the only female Mexican postmaster, which are insufficient to prove pretext or that the management officials’ actions were discriminatory. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on disability, race, or sex for claims 1, 2, 4-11, and 13; or in reprisal for prior protected EEO activity for claims 4, 6, 8, and 13. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on disability, race, or sex, or in reprisal for prior protected EEO activity. 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 finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability, race, or sex, or in reprisal for prior protected EEO activity. 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: 2020003357 10 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. 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. 2020003357 11 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, Director Office of Federal Operations August 19, 2021 Date