[Redacted], Vernita L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Feb 10, 2021

Appeal No. 2020001124 (E.E.O.C. Feb. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vernita L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020001124 Agency No. 1C191002119 DECISION 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 October 30, 2019, 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. ISSUES PRESENTED The issues are whether: (1) this complaint should be remanded for a hearing; and (2) Complainant established that the Agency subjected her to a hostile work environment based on her color, race, and/or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Network Specialist at the Agency’s Philadelphia Processing and Distribution Center in Philadelphia, Pennsylvania. Complainant’s work schedule included Saturdays and Sundays as her off-days. Report of Investigation (ROI) at 182. 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. 2020001124 2 Complainant stated that on January 24, 2019, her first-line supervisor (S1) (Caucasian, white, female, gay) informed her that she was switching Complainant’s off-days with a coworker’s (CW1) (Caucasian, white, male, heterosexual) off-days, which were Sundays and Mondays. ROI at 68-9. Complainant stated that on February 9,10,17,24, 2019, and March 3, 2019, she was denied overtime opportunities because she was never asked to work on a Sunday. Complainant stated that on February 9, 2019, she was off-duty but S1 called her to ask work-related questions because CW1 did not report to work. Complainant stated that when she asked S1 why she did not ask Complainant to come in, S1 responded that she needed to cut back on overtime. However, Complainant stated that S1 asks CW1, and another coworker (CW2) (African-American, black, female, gay) to work every Sunday. ROI at 77,79-80. Complainant stated that S1 called her on February 9, 2019, and March 21, 2019, for work-related issues, which were her off-days. ROI at 85. Complainant stated that it snowed on February 20, 2019, and that CW1 and CW2 were scheduled to work; however, they did not show up and were paid for sick leave. Complainant stated that she reported for work. ROI at 87. Complainant stated that she has additional assignments, as compared to her coworkers. For example, Complainant stated that she works on the platform, handles all the scanners, and processes invoices. ROI at 96. On May 10, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (African-American), sex (female/heterosexual),2 and color (Not Specified) when: 1. on January 24, 2019, S1 informed Complainant that she was changing her work schedule; 2. on February 9,10,17,24, 2019, and March 3, 2019, Complainant was denied overtime opportunities; 3. on February 9, 2019, and March 21, 2019, she was told to work without monetary compensation; 4. on February 20, 2019, she was not paid for a snow day; and 5. on dates to be specified, she was forced to do more work than her coworkers. 2 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020001124 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When the Agency did not receive Complainant’s request for a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), it issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant was a member of a protected class, and that the complained of incidents were unwelcome, if they occurred as alleged. However, the Agency found that there was no evidence that the events occurred because of her protected classes, and that they were not severe or pervasive, when judged by a reasonable person’s standard. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL With Complainant’s appeal, she states that she sent her timely hearing request to the Commission, and she provided tracking information showing its delivery on September 3, 2019. Complainant adds that she sent a copy to the Agency by regular mail. Complainant submitted a subsequent statement in support of her appeal. Complainant argues that CW1 was paid overtime when he worked on Sundays; CW1 received sick leave pay while he was on vacation; and CW2 was paid for hours that she did not work. Complainant also asserts that S1 “falsified” paid leave for CW1 and CW2, by giving them sick leave when they did not report to work as scheduled. In addition, Complainant states that she received a “negative” performance evaluation; was given too much work when she was given some of CW1’s duties upon his retirement; and that S1 initially approved her request for personal leave, and then told Complainant that she was not eligible for personal leave.3 In response to Complainant’s appeal, the Agency provided a sworn declaration from an Agency official, stating that the unit responsible for EEOC hearing requests never received a copy of Complainant’s hearing request. The Agency states that the EEOC Hearing Unit issued a Notice of Receipt of Hearing Request on November 26, 2019, which was 27 days after the Agency issued the final decision. 3 We note that Complainant raises these issues for the first time on appeal. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, we will not address these issues in the instant decision. Should she wish to pursue these claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date she filed her appeal (November 6, 2019), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date she receives this decision. 2020001124 4 Regarding the merits of Complainant’s complaint, the Agency states that Complainant did not provide evidence that any of the alleged adverse actions rendered her aggrieved; that they were so severe or pervasive as to create an objectively abusive environment; or that they were motivated by discriminatory animus. The Agency requests that the Commission affirm its final decision. ANALYSIS AND FINDINGS 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 Chap. 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”). Hearing Request As an initial matter, we address Complainant’s request that the matter be remanded for a hearing. EEOC regulations state that a “complainant shall send a copy of the request for a hearing to the agency EEO office.” 29 C.F.R. § 1614.108(h). Failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Gallo v. Department of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). In addition, an agency's notice must be sufficient to put a complainant on notice that she risks forfeiting her right to a hearing if she does not notify the agency of her hearing request. Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006). In this case, Complainant stated that she sent a copy of her hearing request to the Agency, via regular mail. However, the Agency asserted that it never received it. A review of the record shows that Complainant was properly advised to notify the Agency because she signed her hearing request to attest, “I understand that, if I have not provided the Postal Service with a copy of this request for a hearing to the address listed above, the Postal Service will issue a final decision on my complaint, resulting in the loss of my right to a hearing.” While Complainant provided a receipt showing that she paid for postage, she did not provide evidence showing that what she mailed was a copy of her hearing request to the Agency. As such, we decline to remand the complaint for a hearing. 2020001124 5 Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, 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 Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to statutorily protected classes based on her color, race, and sex, and that she was subjected to unwelcome verbal conduct. However, we find that Complainant has not shown that the conduct was based on any of her protected classes. For example, S1 stated that she planned to change Complainant’s work schedule because CW1’s schedule had him working until 9:30 p.m. on Friday, and then reporting back to work at 4:00 a.m. on Saturday morning, which was a safety concern. ROI at 182. In addition, S1 denied Complainant’s allegation that she was given more work than anyone else. ROI at 198. A witness stated that he may have said that Complainant has a lot of work, but he noted that he could not compare Complainant to her coworkers because he had no knowledge of their workload. ROI at 209. We find that there is no evidence in the record to show that any of the complained of conduct was due to Complainant’s alleged bases. Further, Complainant has not shown that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant did not establish that the Agency subjected her to a hostile work environment based on her color, race, or sex. 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 finding that Complainant did not establish that the Agency subjected her to harassment based on her color, race, or sex. 2020001124 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020001124 7 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 10, 2021 Date