[Redacted], Tammi C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2021000875 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021000875 Hearing No. 420-2017-00247X Agency No. 4G-350-0108-16 DECISION On November 17, 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 August 26, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s Skyland Station in Tuscaloosa, Alabama. On September 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Anxiety, Depression and Post Traumatic Stress Disorder) and reprisal for prior protected EEO activity when: 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. 2021000875 2 1. On or about May 19, 2016, and dates to be provided, Complainant was denied breaks; 2. Since on or about May 19, 2016, Complainant has been required to deliver mail in a dangerous work environment; 3. Part of Complainant’s bid assignment has been provided to coworkers; 4. Complainant has been threatened with being removed; 5. Complainant’s requests for annual leave have been denied; 6. Complainant’s requests for sick leave or leave without pay have been denied and her time has been charged to annual leave; 7. Complainant has been singled out and berated in front of her coworkers; 8. Complainant was physically assaulted; 9. On or about December 13, 2016, Complainant was compared to another carrier who has a prosthetic leg; 10. On or about December 13, 2016, and other dates, Complainant has been sent home for refusing to drive a work vehicle; 11. Complainant received discipline; 12. Complainant has been provided work which exceeds her medical restrictions; 13. Complainant was threatened and spoken to in a demeaning manner during investigative interviews; 14. After Complainant reported being threatened, management failed to properly address the matter; 15. Complainant’s request to use a "safety mechanism" to prevent a rollaway accident was denied; 16. Complainant was issued a Notice of Removal; 17. Complainant’s manager refused to provide her with her paycheck; 18. On or about December 24, 2016, Complainant was not paid for her attendance at a required work-related meeting; and 19. Complainant was charged with using 80 hours of annual leave. 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). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to cooperate with the Agency investigator and failed to provide an affidavit. The AJ remanded the complaint to the Agency for a decision on the merits, but the Agency issued a decision dismissing the complaint. Complainant appealed to this Commission and in a decision dated August 12, 2020, we reversed the dismissal and remanded the matter to the Agency, which issued a final decision (FAD) on the merits pursuant to 29 C.F.R. § 1614.110(b). See EEOC Appeal No. 2019000097. The Agency’s FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 2021000875 3 Specifically, the FAD found that Complainant failed to establish that she is a qualified individual with a disability and hence failed to establish a prima facie case of disability discrimination. The FAD noted that Complainant’s claimed limitations - to not have to work in situations that she believed involved imminent danger - “would apply to anyone” and that Complainant simply, “refused to perform the essential functions of her position.” With regard to Complainant’s claims alleging disparate treatment, the FAD found that management officials articulated legitimate nondiscriminatory reasons for each action and that Complainant failed to show that such reasons were pretextual. Finally, the FAD found that the actions complained of were insufficiently severe and/or pervasive to constitute harassment in violation of the anti-discrimination statutes. The instant appeal from Complainant 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”). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. We note initially that with regard to claims 7, 9, 14 and 15, Complainant does not allege she was subjected to an adverse employment action and hence these allegations will be considered in the context of Complainant’s claim of hostile work environment and not as claims of disparate treatment. With regard to claim 12, the claim will be addressed as a claim of denial of reasonable accommodation. With regard to the remaining claims, Complainant having established a prima facie case, the Agency, in response, must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2021000875 4 This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. Here, we find that management officials articulated legitimate, nondiscriminatory reasons for their actions. With regard to claim 1, Complainant’s Supervisor at the time of the alleged action retired from the Agency by the time of the investigation and declined to provide testimony. Both the Manager (“M”) and the Postmaster (“PM”) denied any knowledge of Complainant being denied breaks, as did all of the witnesses. With regard to claim 2, M denied that Complainant was required to make deliveries at a dangerous location. M averred that: Management had the Safety Specialist [name omitted] visit the location in question, Management road [sic] the area several times with the carrier several times, meet [sic] with the apartment staff to discuss alleged issues and they were fully engaged and cooperate [sic] with any request we needed. We interview [sic] other carriers who delivered the location and we have not find [sic] any reason for the location on that route as a dangerous work environment. . . . [Complainant] disagreed due to potential dogs and people which was not validate [sic] with any credible information to substantiate her claims. With regard to claim 3, M averred that since Complainant refused to deliver mail to the apartment building, believing it to be dangerous, management had to have coworkers deliver mail to that location instead. With regard to claims 4 and 5, all witnesses denied any knowledge of Complainant being threatened with removal or denied leave. With regard to claims 6 and 19, the Manager of Customer Services (“MCS”) averred that: When I came to this station in December, the supervisors were inputting [Complainant] for sick leave. No one realized that she had exhausted all of her sick leave and LWOP was rolling in. When the new leave year began in January 2017, and we were still inputting sick leave, not aware that she had none, the system rolled in her annual, just as it did for LWOP until the new annual leave rolled in. When [the Union Vice President], asked me about it and we looked at TACS and eRMS, [sic] that is when we discovered what was happening. [The Union Vice President] tried to explain this to [Complainant]. . . . It was not 2021000875 5 anyone's decision. As I explained earlier, we were in-putting her time as sick leave, not realizing that she had run out of sick leave, and it was rolling over to give the Complainant LWOP, because she also had no annual leave. When the annual leave for the new year rolled in, the system took annual leave even though we input for sick leave. With regard to claim 8, the Supervisor, Customer Services (“SCS”) averred that: When I came to this office [Complainant] worked there as a city carrier. I had been there a week and called [Complainant’s] name several times and she did not answer me. I tapped her on the shoulder to ask her about a split she was needing to hand off. She told me never to tap her on the shoulder again, and I did not. She then filled out a 1767 [sic] on me for doing so. I responded to her 1767 with an answer on there also. She did wear earbuds occasionally, so I did say if, they were an issue to her not responding to me, that they need to be addressed, because it is important that you be able to hear your surroundings and management be able to communicate with you. For the next 2 months and 3 weeks I was there we never had another incident. I never witnessed her being treated in a harsh way at all. With regard to claim 10, M averred that Complainant refused to drive any of the available Agency vehicles, deeming them all to be unsafe, and since there was no vehicle for her to drive, she was sent home. With regard to claims 11, 13, and 16, the Acting Supervisor at the time (“AS”) averred that Complainant was: [T]aken to the back for an Investigative interview which eventually led to discipline. She was given a letter of removal for failure to follow instructions . . .. She fails to follow instructions and disobeyed a direct order on a daily basis. The direct order was given each day to carry out The Woodlands apt complex.” The record contains a copy of a Letter of Warning (LOW) issued on June 3, 2016, charging Complainant with failure to follow instructions and stating that on May 27 and 28, 2016, Complainant was given a direct order by her then supervisor, since retired, to deliver mail to the same apartment building referenced in claim 2 and above, by AS. The LOW notes that Complainant did not comply with the order. The record further contains a Notice of 14-day suspension, dated August 11, 2016, again charging Complainant with failure to follow instructions for again failing to comply with direct orders given on July 27 and 29, 2016, to deliver mail to the same address. Finally, the record contains a copy of the December 23, 2016 Notice of Removal charging Complainant with unsatisfactory performance/failure to follow instructions for continuing the same infraction as in the previous disciplinary letters and for failing to cooperate during the investigative interview. 2021000875 6 With regard to claim 17, AS averred that he was not aware that Complainant was refused a check, but rather it was simply that her check initially could not be found and he issued her the check a few days later. Finally, with regard to claim 18, M averred that Complainant was not paid for her attendance at a work-related meeting because it was not her regular work day and when management sent her a letter asking her if she agreed with the meeting date, she failed to respond. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. We note in this regard that Complainant did not provide either an initial statement or a rebuttal statement to the investigator and thus did not specifically address the Agency’s articulated reasons for its actions. On appeal, Complainant argues generally that management violated the Rehabilitation Act by requiring her to deliver at an apartment building that she believed to be dangerous because of dogs, and such arguments will be more fully addressed in the section Denial of Reasonable Accommodation below. With regard to her claims of disparate treatment, however, we find that Complainant has not established, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions were pretextual or that management officials harbored discriminatory or retaliatory animus towards her protected bases. Denial of Reasonable Accommodation Under the Commission's regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See, e.g., Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 26, 2016). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Assuming arguendo that Complainant can establish prongs 1 and 2, we find that Complainant has failed to establish prong 3. Complainant on appeal has provided medical documentation showing that she has been diagnosed with acute anxiety and depressive episodes. 2021000875 7 Complainant’s medical restrictions were that she be provided “a safe, non-threatening work environment” which was subsequently clarified to refer to “a workplace that requires/expects employees to treat one another respectfully. No tolerance for bullying or other negative behaviors.” We note that such an environment is required for all Agency employees and hence requiring that management provide such a workplace for Complainant does not amount to an accommodation. Furthermore, even assuming that providing such a workplace environment constitutes an accommodation, we note that Complainant has not shown she was denied such a workplace environment. We note in this regard that many of the incidents that Complainant maintains contributed to a stressful environment were the ordinary give and take of a normal workplace and Agency witnesses have testified under oath that many of the incidents either did not occur, or if they did occur, management officials were able to articulate a legitimate nondiscriminatory reason for them and Complainant has not shown such reasons to be pretextual. The main focus of Complainant’s concern appears to be a specific apartment building on her route that she believed to be dangerous due to unruly dogs and uncooperative dog-owners living at the building. We note that Complainant’s medical restrictions did not state that Complainant should not deliver to this specific building, only that she be provided “a workplace that requires/expects employees to treat one another respectfully. No tolerance for bullying or other negative behaviors.” As such, requiring that Complainant deliver mail to this apartment building did not counter Complainant’s medical restrictions. Even so, we further note that the Agency provided unrebutted sworn testimony that management officials had a Safety Specialist visit the location, management officials accompanied Complainant “several times,” met with the apartment staff who were willing to cooperate “with any request we needed,” and that management interviewed other carriers who delivered mail to the same location and who did not believe the location to be dangerous. As such, the record shows that management officials complied with Complainant’s medical restrictions that she be provided a safe, non-threatening work environment. We therefore find no violation of the Rehabilitation Act when Complainant was disciplined for refusing to deliver mail to the apartment building in question. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when the incidents raised in claims 1-6, 8, 10, 11, 13 and 16-19 occurred, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such incidents must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency with regard to those incidents were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). 2021000875 8 Complainant alleges the following acts of harassment occurred: she has been singled out and berated in front of her coworkers; she was compared to another carrier who has a prosthetic leg; after she reported being threatened, management failed to properly address the matter; and her request to use a "safety mechanism" to prevent a rollaway accident was denied. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, 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 involving the protected class; (3) the harassment complained of was based on the 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. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of record, we conclude that Complainant has not alleged acts that either involved or were based on her protected bases. As such, Complainant has not established that discriminatory harassment has occurred. 2021000875 9 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the final order. 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. 2021000875 10 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 December 23, 2021 Date