[Redacted], Willia R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2021002988 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willia R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021002988 Agency No. 4G-390-0116-20 DECISION On April 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 9, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND On June 6, 2020, Complainant was hired as a Rural Carrier Associate (RCA) at the Agency’s Picayune Carrier Annex in Picayune, Mississippi, subject to an unspecified probationary period. On September 18, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment based on race (Caucasian), color (White), and age (over 40) when: 1. on June 21, 2020, she was told she did not have proper footwear while others employees were not similarly told; 2. on June 25, 2010, after being told to resign three times, she was terminated during her probationary period; 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. 2021002988 2 3. on June 21, 2020, management told her to check her own mail truck because no other carriers were around; 4. on a date to be specified, she was made to take a drug test while other coworkers were not; 5. on June 21, 2020, she was given a route of travel from the Postmaster that entailed the wrong directions; 6. on June 24, 2020, the Postmaster told her she did not like her personality and told her to stop smiling so much; and 7. on a date to be specified, she was not paid for hours worked and her mileage. On April 9, 2021, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS 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 which, 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, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted based on a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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, 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 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 2021002988 3 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, non-discriminatory reasons for its actions as more fully discussed below. On June 6, 2020, Complainant was hired as a Rural Carrier Associate (RCA) at the Agency’s Picayune Carrier Annex in Picayune, Mississippi, subject to an unspecified probationary period. The Postmaster (African American, tan, over 40) stated that she instructed the new RACAs, including Complainant, to wear proper footwear. According to the training specialist, she also sent out an email to all the new hired employees, including Complainant, and in the email, it includes all the information about their upcoming training, location and dates, parking and shoe requirements. The Postmaster stated that she was the deciding official to terminate Complainant during her probationary period due to not having a vehicle for mail delivery, safety concerns and the lack of knowledge of mail delivery. Specifically, the Postmaster stated that as a condition for employment all RCAs are required to have a personally owned vehicle (POV) which is suitable for mail delivery. The Postmaster stated that Complainant did not have a vehicle. Furthermore, the Postmaster stated that an overview was conducted with the new hired employees during orientation. The Postmaster stated further that Complainant was not capable of answering most of the questions that were asked. Also, during her time of training on the routes, the employees who were training her stated their concern to the Postmaster that Complainant was resistant to learning and her focus seemed elsewhere. The Postmaster also observed Complainant not showing interest in learning the necessary skills to ensure she acquired as much training information as possible. With respect to Complainant’s allegation that management told her to check her own mail truck because no other carriers were around, the Postmaster stated that she was not aware of the alleged incident. The Postmaster stated that drug tests are handled by Human Resources. She explained that prior to being hired, a drug test is mandated like a background check and fingerprints which is required by the Postal Service. The Postmaster explained that all new RCAs are given a line of travel for their respective routes. The Postmaster explained that the line of travel is based upon prior route inspections and changes made by the regular carrier assigned to the route. The Postmaster further stated that management asks the new RCA’s to review for any discrepancies during training, and that if there are any problems, the RCAs are to bring to their attention. 2021002988 4 Regarding Complainant’s allegation that the Postmaster told her she didn’t like her personality and told her to stop smiling so much, the Postmaster denied making the comments to Complainant. With respect to Complainant’s allegation that she had not been paid for hours worked and her mileage, the Postmaster asserted that Complainant was paid for attending training from June 9- 12, 2020 and June 16-19, 2020. She noted that Complainant was actually overpaid by a total of 8.19 hours. The Postmaster also stated that Complainant was paid for 400 miles for her rural training. She stated that after a review of documentation, Complainant was missing mileage for orientation from June 9, 2020 to June 12, 2020. The Postmaster averred that she was unaware that Complainant was missing time and if the Postmaster had known, the matter could have been corrected sooner. In addition, the Postmaster stated that after a review of the timekeeping documentation, she noted that Complainant was missing time for June 24, 2020 (8.25 hours) and June 25, 2020 (2 hours) for a total of 10.25 hours. The Postmaster acknowledged that she was unaware that Complainant was missing time and if she had known, this matter could have been corrected sooner. While Complainant denies the allegations, beyond her bare assertions, she did not prove, by a preponderance of the evidence, that the reasons proffered by management were pretextual designed to mask discriminatory animus. Harassment Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person†in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases -- in this case, race, color and age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of her race, color and age. Complainant has simply provided no evidence to support her claim that her treatment was the result of her race, color or sex. Her claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021002988 5 CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2021002988 6 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 August 3, 2021 Date Copy with citationCopy as parenthetical citation