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

Equal Employment Opportunity Commission

Oct 14, 2021

Appeal No. 2020003665 (E.E.O.C. Oct. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zelda G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003665 Agency No. 1F-957-0077-19 DECISION On June 4, 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 May 4, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Maintenance Operations Supervisor, EAS-17, at the Agency’s Processing and Distribution Center in Fresno, California. On October 21, 2019, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) when: 1. On April 16, July 9, October 2, 2018 and other unspecified dates, the Maintenance Manager (MM) singled Complainant out in emails; 2. From March 14, 2018 until May 16, 2019, MM changed Complainant’s schedule which caused Complainant to lose one hour of night differential pay; 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. 2020003665 2 3. On November 13, 2018, Complainant was not paid for one half hour worked; 4. On April 14-20, November 23, and December 8, 14, and 31, 2018, January 1, and April 13-19, 2019, MM denied Complainant leave; 5. On December 26, 2018, MM told another supervisor that Complainant didn’t like him, and subsequently, that supervisor threw her work and personal items in a corner and some of her things were missing; 6. On an unspecified date in 2018, MM changed Complainant’s seniority date which resulted in her being last to pick 2019 vacation choices; 7. On December 27, 2018, MM gave Complainant additional job duties; 8. On March 12, 2019, MM falsified Complainant’s attendance record; 9. On certain dates, Complainant was made to call an 800 number to report her absences; and 10. On July 31, 2019, Complainant was charged leave without pay (LWOP).2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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”). 2 The Agency dismissed two additional claims for untimely EEO Counselor contact. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the dismissal of these claims. 2020003665 3 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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 Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials articulated a legitimate and nondiscriminatory reason for each of his actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (1), MM denied that he singled Complainant out. He affirmed that he sent emails about clock-ring errors to all of his team members so that those mistakes can be fixed. IR 268-69. Concerning incident (2), MM asserted that he would have changed Complainant’s start time for the operational needs of the facility. He also noted that the schedule change resulted in Complainant receiving an extra hour of night differential pay. IR 271-72. As to incident (3), MM denied that Complainant had lost any pay. He averred that there were several instances before and after November 13, 2018 where Complainant would leave between 30 and 60 minutes before her shift ended, and it was not until a security system was installed that MM was able to document Complainant’s early departures. MM also stated that EAS employees get paid for a full 8 hours after they work for a minimum of two hours. IR 279. With respect to incident (4), MM averred that the dates on which Complainant wanted to take leave were among the peak times of the year in terms of mail processing. The weeks Complainant wanted to take off in 2018 and 2019 were designated as tax week. He stated that December 8 and December 14, 2018 fell within the height of the holiday shopping season, that another maintenance operations supervisor had signed up to take leave on November 23, 2018, that he needed a supervisor on hand on December 31, 2018, and that Complainant had taken sick leave between January 1 and January 2, 2019. IR 289. With regard to incident (5), MM denied that he ever told anyone that he did not like Complainant or that anyone had thrown her work and personal items into a corner. He stated that Complainant had moved her desk and belongings into the box mechanic work area and that he had moved Complainant’s things back to the supervisory work area. He emphasized that all of his supervisors worked out of a centralized location because the facility did not have enough space to give each supervisor his or her own office. IR 299, 301-02. Regarding incident (6), MM averred that he did not have the authority to change anyone’s seniority date and that Complainant had been given approved annual leave for all of the dates that she had selected. IR 304, 307. 2020003665 4 Concerning incident (7), MM denied that he had given Complainant additional job duties. Rather, he presented Complainant with a copy of her job description as part of a discussion regarding what she was supposed to do. MM averred that he had received reports that Complainant was not communicating with employees on the workroom floor regarding machine performance and downtime. The Maintenance Operations Support Manager corroborated that MM handed Complainant a job description, not a list of additional duties. IR 309-12, 335. As to incident (8), MM denied that he had entered a comment in Complainant’s attendance record that she had been given an official discussion on March 12, 2019. He averred that he addressed attendance with all of his EAS supervisors whenever they returned from long periods of unscheduled leave. He also stated that Complainant had just returned from 11 days of unscheduled leave and that his discussion with Complainant about her attendance was consistent with his past practice. He confirmed that he had the attendance discussion with her in order to clear the matter of the Email Response Management System, and that no other supervisor had attendance problems. IR 35, 317-18. With respect to incident (9), according to MM, every employee who was going to take unscheduled leave were required to call the 800 number in question. MM averred that Complainant had called the 800 number as directed. IR 320-21. With regard to incident (10), MM asserted that he was out of the office at the time due to medical reasons. The Plant Manager made the decision to charge Complainant leave without pay because she was absent for more than three days and did not provide documentation in support of her absence. IR 325, 339, 355, 364. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Apart from her own assertions, Complainant presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the Agency’s proffered explanations for any of the incidents. 2020003665 5 She has likewise not presented any testimonial or documentary evidence which tends to establish the existence of any of the indicators of pretext listed above or which causes us to question Agency management’s veracity as witnesses. Accordingly, we agree with the Agency that the evidentiary record is not sufficient to show that Agency officials harbored discriminatory animus toward Complainant with respect to any of the incidents at issue in her complaint. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that 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 MM were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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. 2020003665 6 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). 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. 2020003665 7 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 October 14, 2021 Date