[Redacted], Tianna D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2021002552 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tianna D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002552 Hearing No. 490-2020-00141X Agency No. 4G-720-0017-20 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 23, 2021 final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Sales & Service Associate (Window Clerk), PS-06, at the Agency’s Fort Smith Main Station in Fort Smith, Arkansas. On February 18, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of sex (female), age (51), and reprisal for prior protected EEO activity when: 1. On July 26, 2019, Complainant was issued a Letter of Warning ("LOW"); 2. On October 2, 2019 and December 18, 2019 Complainant was referred to as "Barney"'; 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. 2021002552 2 3. On October 3, 2019, Complainant was given an Investigative Interview; and 4. On October 16, 2019, Complainant was issued a 7-Day Suspension (“7-Day”).2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute.3 Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. As to Claim 1, the evidence of record shows that HAZMAT failures were recorded for Complainant during 8 different weeks in 2019. 2 Although some of these claims were initially dismissed by the Agency, the AJ added them back into the instant case and outlined the issues to be addressed in the Scheduling Order. 3 On appeal, Complainant raises issues with the Agency’s responses to discovery. However, she did not previously file a Motion to Compel and she also contends in her appeal that she provided evidentiary support for her claim. She does not identify with specificity what evidence is missing from the record in order to raise a question of either an incomplete record or a genuine issue of material fact. Therefore, we find the record is complete. 2021002552 3 She was issued training which instructed her not to press the HAZMAT button for customers. On July 26, 2019, Complainant was issued a Letter of Warning which noted she had pressed the HAZMAT button for customers on approximately 832 occasions despite her protocol and training. The record reflects that another employee (male, YOB 1964, no prior EEO activity) was issued a LOW that same day for answering HAZMAT questions for customers on approximately 496 occasions despite training. A third employee (male, YOB 1952, prior EEO activity 2006- 2016) was issued a LOW on July 24, 2019 for answering HAZMAT questions for customers on approximately 825 occasions. As to Claim 2, Complainant asserted that on December 18, 2019 her supervisor (“Supervisor”) left a note at Complainant’s work station with everyone’s last name on it and she was listed as “Barney” for harassment purposes only. Complainant asserted she was never called this to her face, but in emails to other individuals. Complainant did attach a note with the alleged names written and written below it states “Please stop leaving notes w/this stupid nickname on my station. It’s demeaning and harassment.” As to Claims 3 and 4, Complainant stated she received an Investigative Interview on October 3, 2019 about an October 1, 2019 incident where she did not report to the office as instructed. She stated that Supervisor called another manager during the incident for guidance. Complainant confirmed she refused to follow instructions three times when asked to put her request for a union steward in writing and she confirmed she failed to follow instructions another three times before entering the room. Complainant stated she felt threatened when Supervisor informed her that management could call her into an office, request the door be closed, and she needed to obey. Complainant indicated she informed Supervisor she would not go into a closed-door room without a union steward of witness. Complainant disagrees with the 7-day suspension issued on October 16, 2019 because she says she complied in a timely manner. Supervisor states that Complainant was issued a 7-Day Suspension because Complainant failed to follow instructions and then proceeded to make a scene in front of customers. Another supervisor (“Supervisor 2”) stated he was present as a witness during the Investigative Interview and he felt it was a fair and unbiased interview similar to interviews given to other employees. He stated both Complainant and Supervisor were loud, but there was no yelling and no harassment during the interview. Another management official stated he had heard Complainant acting out and not following directions issued by Supervisor. Complainant stated that three other employees were issued discipline for similar reasons and it is common practice for management to issue discipline. The record reflects Complainant was issued a 7-Day Suspension on October 16, 2019 for her failure to follow instructions on October 1, 2019. Complainant has failed to prove her prima facie case for age and sex discrimination. With respect to Claim 2, she has not alleged an adverse employment action. With respect to Claims 1, 3, and 4, she has failed to show that similarly situated employees were treated more favorably. In fact, the record shows Complainant was one of three employees issued a Letter of Warning for HAZMAT violations and she stated it was common practice for management to issue a 7 Day Suspension if there was an investigative interview. 2021002552 4 Complainant has also failed to state a prima facie case for retaliatory discrimination because she has not shown any nexus between her prior EEO activity in 2006 and 2008 and the Agency actions alleged in her current complaint. The Agency officials involved in her current complaint were not involved in her former complaints and had no knowledge of Complainant’s prior EEO activity. The amount of time between EEO complaints to far too long to show any sort of temporal nexus. As above, Complainant has also failed to show similarly situated employees without prior EEO activity were treated any differently. The Agency also articulated legitimate, non-discriminatory reasons for its actions in Claims 1, 3, and 4. The ELM requires employees to obey the instructions issued by their supervisor. Complainant was trained not to press the HAZMAT button for customers for safety reasons. However, despite additional training, she continued to do so. Therefore, she was issued a Letter of Warning. On October 1, 2019, she was given multiple short instructions by Supervisor but she refused to comply. As a result, she was given an investigative interview. Based on the investigative interview, she was given discipline in the form of a 7 Day Suspension. Complainant has not shown that these reasons were pretextual, nor has she shown any discriminatory animus on the part of the Agency. Instead the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Turning now to Complainant’s claim for discriminatory harassment, following a review of the record and taking the facts in the light most favorable to Complainant, we find that, the actions alleged reflect personality conflicts, general workplace disputes, and petty annoyances between Complainant and a supervisor, which, even if proven true, would be insufficiently severe or pervasive to state a valid claim of a discriminatory hostile work environment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment in violation of Title VII). Complainant has not shown evidence that her age, sex, or remote EEO activity played any role in management’s actions or that management acted with any discriminatory or retaliatory animus. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021002552 5 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). 2021002552 6 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 April 13, 2022 Date