[Redacted], Zoie C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2021003425 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zoie C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021003425 Hearing No. 480-2021-00047X Agency No. 4E-890-0038-20 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 April 26, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a City Carrier, PS-02, at the Agency’s Las Vegas Red Rock Vista Station facility in Las Vegas, Nevada. On May 27, 2020, Complainant filed an EEO complaint alleging she was discriminated against based on race (African American) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On February 10 & 11, 2020, Complainant’s manager entered her personal space, humiliated, and intimidated her. 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. 2021003425 2 2. On February 29, 2020, Complainant was given an investigative interview and then issued a 7-day suspension on March 25, 2020. 3. On July 17, 2020, Complainant was put on emergency placement in an off-duty status without pay effectively denying her a reasonable accommodation. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, 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. Complainant filed the instant appeal. 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 2021003425 3 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Disparate Treatment In the present case, assuming Complainant established a prima facie case of discrimination based on race, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not shown by a preponderance of the evidence that the Agency’s asserted reasons were a pretext for discrimination. Regarding claim 2, the evidence shows that the Agency asked Complainant to complete an investigative interview and subsequently suspended her for failure to follow instructions and unacceptable conduct. Specifically, she was disciplined because she failed to deliver parcels that were assigned to her and had a verbal altercation with a supervisor. Regarding claim 3, the evidence shows that the Agency placed Complainant in a non-pay status after she was on the workroom floor without wearing a mask or face shield in violation of state and Agency regulations. Complainant has not identified any evidence to suggest that the Agency’s actions were motivated by racial discrimination. Complainant generally asserts that she was treated differently based on her race because she has witnessed White employees disrespect management and fail to wear a mask without consequence. In support of these contentions she submitted screenshots of statements and conversations with coworkers discussing not wearing a mask and the lack of consequences for their actions. These unsworn, unverified statements do not persuasively show that the Agency’s actions were motivated by racial animus. Complainant further alleges that another African American Coworker (C) was also treated unfairly, harassed, and humiliated by management. She submitted a statement from C, which generally stated they both were subjected to harassment and unfair treatment. However, pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). The fact that Complainant and C are of the same race and purport to have a similar experience is not sufficient by itself to attach racial animus to the Agency’s actions. Thus, Complainant failed to show by a preponderance of the evidence that the asserted reasons are pretext for discrimination based on race. 2021003425 4 On appeal, Complainant appears to attempt to allege that claim 3 is a violation of the Rehabilitation Act because she was denied a reasonable accommodation by being placed on nonduty status for failure to wear a mask. Even if the complaint could be read as making such a claim, such a claim fails. The evidence shows that Complainant submitted a letter from her doctor noting that because of her respiratory conditions she must remove her mask during “flare- ups.” There is no evidence that Complainant asserted she was having “flare-ups” at the time she was not wearing a mask or informed the Agency/supervisor that she was having “flare-ups.” As Complainant has not shown that she was required to perform any duties in violation of her medical restrictions we find that she was not denied a reasonable accommodation. Reprisal Complainant has not shown by a preponderance of the evidence that the Agency’s actions were in retaliation for protected EEO activity. She asserts that the temporal proximity between her EEO activity and the Agency’s actions suggests retaliation. Specifically, Complainant asserts that on February 29, 2020 - approximately a week after her initial EEO consultation - she received an investigative interview. Although the temporal proximity between the disputed actions and Complainant’s protected activity are sufficient to establish a prima facie case of reprisal, Complainant has not presented any evidence to show the Agency’s asserted reasons for the disputed actions - her failure to complete her assignment, her verbal altercation with a supervisor, and her refusal to wear a face covering as required - were pretextual. Complainant generally asserts that once she filed her claim, she was targeted by management. As there is no evidence to support Complainant’s suspicions, she has failed to show that the Agency’s actions were retaliatory. Hostile Work Environment Because we find that Complainant failed to show that any of the alleged incidents were motivated by discrimination or retaliation, we find that Complainant has failed to show that she was subjected to a discriminatory hostile work environment. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 2021003425 5 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). 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. 2021003425 6 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 December 2, 2021 Date