[Redacted], Shondra S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jan 6, 2021

Appeal No. 2020003949 (E.E.O.C. Jan. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shondra S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2020003949 Agency No. 4C-170-0021-19 DECISION On April 3, 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 March 9, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part Time Flexible (PTF) Clerk Level 6 at the Agency’s Pocono Lake Post Office facility in Pocono Lake, Pennsylvania. The Postmaster General was her first-level supervisor. On April 16, 2019, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against her in reprisal for prior protected EEO activity (questioning the Postmaster's management style and grievance activity) when: 1. On January 15, 2019, the Postmaster made unprofessional and derogatory comments to her; 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. 2020003949 2 2. On January 15, 2019, the Postmaster made her put her phone away; 3. On or around January 25, 2019, her work hours and lunch time were changed; 4. On or around February 20, 2019, she was not permitted to leave work due to a snowstorm when she was made to take an extended lunch and come back to close the office; 5. On March 8, 2019, she was issued a Letter of Warning (LOW); and 6. On March 19, 2019, management discussed her harassment case and EEO matter with customers. After 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. With respect to Claims 1 and 2, the Agency found that Complainant could not establish a prima facie case of retaliation because she had not engaged in any EEO activity at the time of the incidents and her prior grievances did not constitute protected conduct. These incidents occurred on January 15 and Complainant did not initiate contact with an EEO counselor until January 18. Further, the workers who Complainant alleged were able to use their cellphones were not postal employees. Regarding Claim 3, the Agency considered the Postmaster’s statement and Complainant’s admission that a Part Time Flexible Clerk has no set hours and her schedule is subject to change based upon the needs of the Post Office. The Agency noted that the Postmaster explained that contractually, he was only permitted to perform fifteen hours per week of bargaining unit work (BUW), so he changed Complainant’s schedule so that he could keep his BUW work to fifteen hours. The Agency found that Complainant proffered no evidence refuting his reason for the changes. Additionally, the Agency found that the Postmaster could not be a comparator. As for Claim 4, the Agency considered the Postmaster’s statement that he was pre-scheduled for annual leave that day, and although he covered Complainant’s lunch when her replacement did not show up, he denied her request to depart early because he was on annual leave and Complainant was on schedule to close the office. The Agency found that Complainant produced no evidence that this reason was pretextual, especially since she acknowledged that the Postmaster typically permitted her to depart early during a snowstorm. Moreover, the Agency noted that even Complainant did not believe her EEO activity factored into the Postmaster’s actions. 2020003949 3 On Claim 5, regarding the Postmaster’s issuance of the LOW for Complainant’s failure to wear a full uniform during work hours, the Agency noted that when Complainant was asked why she believed her EEO activity, the questioning of the Postmaster’s management style, or her grievance activity were factors, Complainant responded "N/A". She also was not able to identify any postal rules/policies she believed management violated. Hence, the Agency found that Complainant could not establish a prima facie case of retaliation. Additionally, the Agency found that Complainant did not bring forth any evidence establishing that the Postmaster's reasons for his actions were not the real reasons for the discipline. Concerning Claim 6 alleging that the Postmaster discussed Complainant’s EEO complaint with a customer, the Agency found that the Postmaster denied engaging in such conversations. Moreover, even though Complainant alleged that a customer informed her that he overheard a conversation discussing her EEO harassment complaint between the Postmaster and another customer, and that other customers also overheard the conversation, the Agency noted that Complainant failed to identify the customers or produce any witness statement confirming that the conversation occurred. The Agency also found that to the extent Complainant alleged disparate treatment, it noted that only Claims 3, 4, and 5 constituted discrete acts subject to a disparate treatment analysis. The Agency further found that these claims failed because the comparators Complainant identified were not similarly situated in work status or chain of command, and no evidence was presented which showed that the reasons articulated by the Postmaster for his actions were false. Finally, with respect to the harassment claims, the Agency found that the matters of which Complainant complained were insufficient to bring these events within the harassment framework. The Agency noted that the claims had been found to be nondiscriminatory for retaliation and disparate treatment purposes, and that they constituted routine work assignments, instructions, and admonishments that do not rise to the level of discriminatory harassment. Accordingly, the Agency found that Complainant had not been subjected to discrimination as alleged. This appeal followed. ANALYSIS AND FINDINGS 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, 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”). Complainant bases her reprisal claims on prior EEO activity, her grievances, and objections to his Postmaster’s management styles. The record is clear that Complainant had no prior EEO activity to support her reprisal claims. 2020003949 4 Further, even if the prior activity constituted protected activity such as opposition to discrimination, we find that Complainant has failed to show that the Agency’s legitimate, nondiscriminatory reasons for its actions were false or that the actions were motivated by retaliation. CONCLUSION The Commission AFFIRMS the Agency’s finding of no discrimination as alleged. 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. 2020003949 5 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. 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 January 6, 2021 Date