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

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021000938 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zoey G.,1 Complainant, v. Louis DeJoy, Postmaster General United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021000938 Hearing No. 560-2020-00161X Agency No. 4J-630-0074-19 DECISION On October 23, 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 October 15, 2020 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services, and Distribution Associate, P-06, at the Agency’s Post Office in Columbia, Missouri. On July 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity when: 1. On February 5, 2019, Complainant was physically threatened by a co-worker and management did nothing; 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. 2021000938 2 2. A co-worker continually badgered her and made derogatory statements about Complainant on the workroom floor and management did nothing; 3. She was pulled off her bid assignment; 4. She was denied overtime (OT) opportunities; 5. On February 14, 2019, Complainant was issued a seven-day suspension; 6. On May 30, 2019, Complainant was issued a 14-Day Suspension; and 7. On July 19, 2019, she was issued a Notice of Removal. Claims 1 and 2 - Threats and Badgering On February 5, 2019, Complainant was confronted by another employee (CW1), who was yelling at Complainant. Complainant used profanity and threatened CW1. A management official, the Supervisor Customer Service, heard the commotion and intervened to diffuse the situation. ROI, Affidavit E, p. 369. He was not aware of Complainant’s prior EEO activity. Management investigated the incident. In addition, the record shows that another employee (CW2) had been making snide remarks about Complainant to customers. The record shows ongoing friction between Complainant and CW1. The record shows that management issued disciplinary action to Complainant, CW1, and CW2. Complainant believed that she should not have been given any discipline. Claims 3 and 4 - Assignment and Overtime S1 affirmed that Complainant was assigned to Room 101, the cage, the retail window, and other duties as assigned. S1 added that Complainant often worked in Room 101 and the cage and was called to the window, as needed. S1 stated that Complainant informed him that she believed that she was assigned duties outside of her assignment. S1 affirmed management made its decisions to assign certain work based on the employee’s skills and hours. He said he explained the reasons to Complainant, telling Complainant “the window is part of her assignment and it is a critical position with special knowledge.” ROI, Tab D, p. 352. S1 averred that most of the clerks to whom Complainant compared herself were employees working in other operations. He also affirmed that Complainant was assigned OT opportunities, while others received OT opportunities that were outside of Complainant’s scope of skills or on a completely opposite shift. Claims 5 and 6 - Suspensions S2 issued Complainant a Seven-Day Suspension for Unacceptable Conduct, because Complainant violated the Agency’s Violence in the Workplace policy and the Zero Tolerance policy in relation to the February 2019 altercation with her co-workers. During the incident, Complainant used profanity and made threats. That suspension was later reduced to a Letter of Warning following a grievance. 2021000938 3 On May 30, 2019, Complainant was issued a 14-Day Suspension for Unacceptable Conduct and Failure to Follow Instructions. The record reveals that on February 7, 2019, Complainant prepared and mailed personal correspondence during her work hours, left her work assignment and used the exit door to enter the front lobby, and then cut in front of a customer who was waiting for service at the front window. Complainant had previously been counseled about not conducting personal business during her work hours. The OIC, Grade 22, concurred in the suspension, ROI, p. 383. The suspension was later rescinded during the grievance process. Claim 7 -Notice of Removal On May 30, 2019, a supervisor instructed Complainant to go to the window and provide backup. Instead of going to the window as instructed, Complainant asked why another clerk that was working the box mail could not go. The supervisor told Complainant that the clerk’s duties were time sensitive. Complainant continued to argue that she should not have to go to the window and that it was not in her job description. Complainant was instructed again to go to the window. Complainant then took 26 minutes to report to the window, helped two customers, and then left the area leaving customers in line. On June 4, 2019, Complainant was scheduled to have a meeting with management, the Union President, and CW1 to address ongoing issues with CW1. When the meeting started, Complainant got up and left the room despite instructions from management and the Union President to sit down. On July 15, 2019, Complainant was issued a Notice of Removal for Insubordination for her actions on May 30, 2019 and June 4, 2019. The removal action was later reduced to a Letter of Warning as a result of a grievance. At the conclusion of the 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). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS 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. 2021000938 4 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. Here, however, Complainant has failed to establish such a dispute. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions. The Agency investigated her claims that she was harassed and badgered by co-workers and took the actions that it deemed appropriate. Management disciplined all parties involved in the February 2019 altercation. Complainant was given assignments, including overtime, that the Agency needed to carry out its mission and did so in accordance with Agency policies. Complainant was issued two suspensions and a notice of removal because management determined the actions were warranted based on what management deemed to be Complainant’s own misconduct. Although Complainant disagreed with management’s perceptions, she did not offer evidence that the stated reasons were untrue. Moreover, Complainant did not provide evidence that the identified management officials in this matter harbored retaliatory animus. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2021000938 5 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). 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. 2021000938 6 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 16, 2022 Date