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

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020000259 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terisa B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020000259 Agency No. 4F-900-0055-19 DECISION On September 11, 2019, 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 16, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issue presented herein is whether the Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discriminatory harassment on the basis of disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time Carrier (City) at the Agency’s Compton Post Office in Compton, California. On March 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability (knee) 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. 2020000259 2 1. on October 18, 2018, and other dates, management spoke to Complainant in an unprofessional manner, observed Complainant on her route multiple times, and commented that Complainant walked too slowly; 2. on October 18, 2018, Complainant’s start time was changed to 9:00 a.m.; and 3. on November 17, 2018, management told Complainant that she cased too slowly and had someone else case her route before Complainant reported to work. Complainant identified her disabling medical condition as a right and left knee on-the-job injury for which she was first diagnosed on August 15, 2011, adding that the condition would continue until Complainant got knee replacements. Complainant stated that she provided her supervisor (S1) with a duty status report on April 30, 2019, and medical documentation that identified her work related restrictions. Complainant asserted that she can case and carry mail with a five minute break every hour. In addition, Complainant can do Express mail, drop off apartments, and pick up packages. Complainant stated that she had no limitations in her personal life as a result of her disabling condition. The record also includes a Duty Status Report dated April 8, 2019, indicating that Complainant had limitations of 20-25 pounds lifting, standing/walking up to 4 hours per day and could work up to 8 hours per day with a 5 minute break every hour. Record evidence includes the standard job description for the position of Carrier (City) indicating the functional purpose of the position is to deliver and collect mail on foot or by vehicle under varying road and weather conditions in a prescribed area; maintain professional and effective public relations with customers and others, requiring a general familiarity with postal laws, regulations, products and procedures commonly used, and with the geography of the area. The job description further indicated the position may be required to carry mail weighing up to 35 pounds in shoulder satchels or other equipment and to load or unload containers of mail weighing up to 70 pounds. S1, the responsible management official, stated that it was her understanding that Complainant had walking limitations from an on-the-job injury. S1 asserted that Complainant submitted medical documentation periodically as required for her injury; and that Complainant was required to perform office/street duties for her route up to her medical limitations. S1 stated that Complainant can stand and walk up to 4 hours continuously; and that Complainant could not deliver her complete route. Therefore, Complainant was given auxiliary assistance for the portion she could not deliver within her restrictions. S1 stated that Complainant was on limited duty. Claim 1 Complainant alleged that she was harassed on route 13 from October 18, 2018 to November 17, 2018, when S1 asked Complainant what mail Complainant had left on her route; and when S1 observed Complainant seven times over the period in question. Complainant stated her belief that her disability was a factor in management speaking to her in an unprofessional manner, going out to her route multiple times, and commenting that she walked too slowly. 2020000259 3 S1 stated that she has never spoken to Complainant in an unprofessional manner, asserting that Complainant would cut her off and start walking away when S1 spoke to Complainant. S1 stated that she has had to regain Complainant’s attention by calling her name, asking her to listen and asking her to repeat the communication to ensure that Complainant heard what S1 stated. S1 asserted that she did not recall the specific date but she probably did observe Complainant in October 2018, as well as on other dates. S1 explained that she performed street observations on carriers at various times per week to ensure they were working safely, adhering to Postal rules, and working efficiently. S1 asserted that her decision to perform street observations on Complainant was consistent with the fact that Complainant continued to exceed the amount of time she was authorized to work. S1 stated that she did not recall the number of times she observed Complainant during the period at issue but carriers may be observed several times in a month and some more than seven times. S1 stated that she did not recall telling Complainant that Complainant walked too slowly, but stated her belief that she asked Complainant how much mail Complainant had left and told Complainant that she should be farther along according to the amount she had to deliver and the time she started delivering. S1 stated that if she observed other employees who were not performing to evaluated times of delivery, she would address the issue with them. S1 asserted that her management of Complainant was not to harass Complainant but rather to perform the duties as a delivery supervisor. S1 asserted that she did not recall having any conversation with Complainant during which S1 stated anything about Complainant's knee not getting any better. S1 stated that Complainant's medical condition was not a factor in any of her actions and decisions regarding this claim. S1 also stated her belief that Complainant may have told her that conducting street observations was harassment. Claim 2 Complainant’s start time as stated in her job offer was 8:00 a.m. Complainant alleged that S1 changed Complainant’s start time, asserting that when Complainant returned from carrying mail, she was given a note to start at 9 a.m., but was not given a formal new job offer that reflected the new start time. Complainant asserted that earlier that same day, S1 told Complainant that Complainant’s knees were not going to get any better. Complainant stated that about three months later, she received a formal new job offer to start at 9 a.m. Complainant asserted that her disability was a factor in her start time being changed because S1 had just told Complainant that Complainant’s knee was not going to get any better and her route was all walking. S1 stated that she changed Complainant's former start time from 8 a.m. to a new start time of 9 a.m., indicating that she informed Complainant of this change via a Postal Service (PS) Form. S1 asserted that she changed Complainant's start time to try to provide enough time on the street for Complainant to complete her delivery time up to 4 hours continuously as Complainant had been exceeding the amount of time she was supposed to walk/deliver according to Complainant’s restrictions. 2020000259 4 S1 stated that she did not change the start time of any other employee at the same time she changed Complainant's start time, asserting that various other employees who were not on the Overtime Delivery List (ODL) had their start times changed to 8:30 a.m. to reduce the amount of wait time due to plant arrival failures that resulted in mail processing delays to the carrier units. S1 stated that if Complainant reported earlier, she would have to give away more delivery time as Complainant would reach her standing/walking restrictions earlier and require more to be taken away from her delivery portion. S1 asserted that on May 6, 2019, Complainant began reporting at 8:30 a.m., asserting that she changed Complainant's start time not to harass her but to help/assist her to work the workload without exceeding her maximum time that she is able to walk/stand according to her medical restrictions. S1 asserted that she was providing reasonable accommodations to Complainant by giving her work within her restrictions and assisting her so that Complainant would not violate her medical restrictions. The record includes Route/Carrier Daily Performance/Analysis Reports for all routes at the Compton Post Office from October 1, 2018 through December 1, 2018. The documents indicated that Complainant worked over projected hours five times out of the seven times on which she was observed as follows: October 18, two hours 18 minutes over projected time; October 24, within projected time; November 1, two hours four minutes over projected time; November 2, three hours three minutes over projected time; November 5, two hours 18 minutes over projected time; November 14, within projected time; and November 17, two hours 27 minutes over projected time. Claim 3 Complainant stated that on the date at issue, S1 told her that Complainant cased too slowly. Complainant alleged that she was denied the opportunity to case her route, asserting that she was making standard office time during the period at issue; and that she was not leaving late or requiring assistance in casing her route. Complainant asserted that since about nine months earlier, she had been allowed to case her own route. Complainant stated her belief that her disability was a factor in not being allowed to case her route because all of the other light duty/limited duty carriers cased their routes. S1 stated that she may have told Complainant that Complainant was not completing her office/loading duties and beginning street duties timely, but S1 did not believe she told Complainant that Complainant was casing too slowly. S1 asserted her belief that she told Complainant that Complainant was taking too long in the office and needed to get to the street in accordance with Complainant’s work volume. S1 stated that around the date at issue, she had another employee case Complainant's route to enable Complainant to minimize office time and have the majority of her walking/standing time available for delivery. S1 explained that Complainant did not go directly to the street every day when Complainant reported to work as most days she still had residual mail to case and pull down. S1 stated that Complainant's medical condition was a factor in changing her start time only to the extent that Complainant had demonstrated that she could not deliver the evaluated amount of delivery without going over excessively. 2020000259 5 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant submitted the instant appeal without specific argument regarding the FAD.2 The Agency did not submit an Appeal Brief. 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). 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”). ANALYSIS AND FINDINGS Disparate Treatment and Harassment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She 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. Co. 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, 441 U.S. 802 at n. 13. 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). 2 We note that Complainant requests that the Commission assist her in obtaining an attorney. However, the Commission does not have the authority to do so. See Complainant v. Dep’t of the Treasury, EEOC Request No. 0520140103 (April 2, 2014); see also, Barker v. Dep’t of the Navy, EEOC Appeal No. 01953487 (Nov. 7, 1996) (noting that the regulations allow for Complainant to have a representative of their own choice but the regulations do not provide for a representative). 2020000259 6 To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1 asserted that she took the alleged actions within her authority to make business decisions on behalf of the Agency in the interest of efficient and improved mail delivery. The evidence reflects that S1 performed street observations on Complainant, changed Complainant’s start time, and had another employee case Complainant’s mail because Complainant was exceeding the amount of time she was authorized to work. Record evidence also indicates that Complainant had worked over projected hours five out of the seven times on which she was observed. Complainant indicated that S1 spoke to her in an unprofessional manner, went out to her route multiple times, and commented that Complainant walked too slowly. However, S1 denied speaking to Complainant unprofessionally. S1 also stated that if she observed other employees who were not performing to evaluated times of delivery, she would address the issue with them. Complainant did not refute S1’s denial or statements. Complainant also asserted that all of the other light duty/limited duty carriers cased their routes. Complainant, however, failed to show that like her, those other carriers demonstrated that they could not deliver the evaluated amount of delivery without going over excessively. Complainant did not present any evidence to demonstrate that any of the actions taken by S1 were based on discriminatory motive due to Complainant’s disability. Rather, the evidence shows that S1 took the alleged actions within her authority as the mail delivery supervisor consistent with agency policy. Because an agency has “broad discretion to set policies and to carry out personnel decisions” it “should not be second-guessed by the reviewing authority” where, as here, there is no evidence of unlawful motivation. Jangula v. U.S. Postal Serv., EEOC Appeal No. 0120111330 (May 24, 2013) (quoting Burdine, 450 U.S. at 259). Therefore, Complainant’s claims fail. Regarding harassment, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2020000259 7 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. 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). 2020000259 8 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 February 2, 2021 Date