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

Equal Employment Opportunity Commission

Mar 31, 2021

Appeal No. 2020004800 (E.E.O.C. Mar. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verdell A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004800 Agency No. 4G-350-0015-19 DECISION On April 27, 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 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a full-time City Carrier at the Agency’s Cahaba Heights Branch in Birmingham, Alabama. On January 31, 2019, Complainant filed an EEO complaint alleging that the Agency treated her disparately and subjected her to hostile work environment harassment on the bases of race (African-American), sex (female), and disability (Fibromyalgia and Degenerative Disc Disease) 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. 2020004800 2 1. on August 8, 2018, August 13, 2018, September 6, 2018, October 24, 2018 and other dates, management followed and observed Complainant on her mail route; 2. on October 3, 2017, management placed a note on Complainant’s case stating she was on the Deems Desirable List (for employees who abuse leave-to prohibit them from calling out without medical documentation); and 3. in January 2019, management tried to revoke Complainant’s change of work schedule. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, as to (1), Complainant stated that she has medical restrictions of working no more than eight hours in a day, lifting no more than 15 pounds, and no stair climbing. Complainant stated that management would send someone out to observe her on her route after she stated that she could not complete the route in her eight-hour daily restriction. Complainant stated that management tried to make her work outside of her medical restrictions and did not treat other carriers outside of her protected classes the same. Regarding (2), Complainant alleged that management placed the Deems Desirable List note on her case where others could see it. For (3), Complainant alleged, in January 2019, the Cahaba Heights Customer Service Manager (S1) tried to revoke her change of work schedule and she had to contact the Postmaster to retain the changed schedule. The Customer Service Manager (“S1”) responded that she is aware of Complainant’s medical restrictions and Complainant would leave packages that exceeded her lifting restriction or drop a segment of her route so as not to exceed her 8-hour working limitation. S1 stated, for (1), “Street supervision is a part of management job duties.” She stated that street supervision is to ensure carriers are following safety procedures and is conducted for all employees. The Agency presented “satisfactory” ratings for Complainant for the street observations. Regarding (2), S1 stated, in September or October 2018, she placed Complainant on the Deems Desirable List, which is when a supervisor suspects sick leave abuse. S1 stated Complainant had a practice of calling in when informed that her route would be counted the next day. She asserted that attendance records show that, in 2018, Complainant had unscheduled leave every pay period, except two. As to (3), S1 stated that Complainant requested a work schedule change for a year and management informed her that it had to be requested in 30-day increments. S1 stated that management did not revoke the change of schedule, but Complainant later stated that she did not need it. Following the EEO 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). 2020004800 3 Complainant requested a hearing, but, subsequently, the assigned AJ remanded the matter to the Agency for a final agency decision, citing “fail[ure] to comply with orders of the Administrative Judge.” On April 6, 2020, the Agency issued a final decision concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency assumed without finding that Complainant is an individual with a disability. The final decision found that Complainant failed to show that the Agency’s actions were motivated by discriminatory factors. 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health 2020004800 4 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, sex, or disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency stated that street observations are a part of management’s duties to ensure safety protocols and that all employees (including Complainant) received them. The Agency presented “satisfactory” ratings for Complainant for the aforementioned street observations. S1 stated that she placed Complainant on the Deems Desirable List in September or October 2018. S1 stated that Complainant had a practice of calling in when informed that her route would be counted the next day. Further, S1 stated that management informed Complainant that work schedule changes had to be requested in 30-day increments, rather than one-year increments as Complainant submitted. S1 stated that management did not revoke the change of schedule, but Complainant later stated that she no longer needed it. The Agency stated that it did not treat Complainant differently. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, sex, or disability. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 2020004800 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). 2020004800 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 March 31, 2021 Date