Maya F.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 10, 20202019003441 (E.E.O.C. Sep. 10, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maya F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019003441 Hearing No. 430-2017-00515X Agency Nos. 4K-230-0124-16, 4K-230-0182-16 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 March 28, 2019, 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 Carrier Technician, Level Q-02, at the Agency’s Great Bridge Station facility in Chesapeake, Virginia. Postmaster, EAS-24, Manager of Customer Services, EAS-20, Acting Manager of Customer Services, EAS- 20, and Supervisor of Customer Services, EAS-17, were listed as the responsible management officials (RMOs) at Great Bridge Station who allegedly subjected her to discriminatory harassment. 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. 2019003441 2 Prior to filing the instant complaint, Complainant filed five prior EEO complaints. Complainant’s most recent prior EEO activity (Agency No. 4K-230-0016-15) mostly involved allegations while Complainant was working as a City Carrier, Level Q-01, at the Agency’s Chesapeake Main Post Office (MPO). However, Complainant also raised claims against management at the Great Bridge Station Post Office after she started working there as a Career Technician, Level Q-02, on or about May 16, 2015. Her most recent EEO complaint is pending appeal before the Commission in EEOC Appeal No. 2019002158. Complainant listed MPO Supervisor and Officer-In-Charge as the RMOs who allegedly subjected her to discrimination in prior EEO complaints. Complainant alleged MPO Supervisor and Officer-In-Charge informed RMOs at Great Bridge Station of her prior EEO activity. All RMOs at Great Bridge Station, denied that RMOs at MPO informed them of her prior EEO activity. Rather, all RMOs stated they became aware of Complainant’s EEO activity when they were asked to provide statements in her previous EEO complaint. All RMOs denied that Complainant’s protected status was the basis of their actions, rather Complainant’s poor performance and inappropriate behavior were the basis of their business decisions. On August 8, 20162, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment based on sex (female)3 and in reprisal for prior protected EEO activity when: 2. On March 24, 2016, Complainant was instructed to clock out prior to working 8 hours; 3. On March 24, 2016, the Postmaster spoke to Complainant in a demeaning manner after she submitted a request for overtime/auxiliary assistance; 4. On March 31, 2016, Complainant's request for a PS 3996 Form, Carrier Auxiliary Control form was denied; 5. On March 31, 2016, Complainant was spoken to in a loud demeaning tone; 6. On March 31, 2016, the Union President told the Complainant that several management officials have stated that she was going to get it; 7. On March 31, 2016, April 1, 2016, and April 6, 2016, Complainant's overtime hours were recorded as unauthorized; 8. On April 8, 2016, Complainant's manager made negative comments about Complainant's driving deficiencies on a driving observation form; 9. On June 1, 2016, Complainant was subjected to street supervision; 2 Complainant filed her first formal complaint on August 8, 2016. On September 3, 2016, Complainant filed an amendment which was initially marked incorrectly as a separate complaint, Agency No. 4K-230-0182-16. Thereafter, the complaint file refers to Agency No. 4K-230-0124- 16, as the lead case number with Agency No. 4K-230-0182-16, as the secondary case number. For clarity of the record, these claims are numbered as reflected in the Agency’s Acknowledgement of 2nd Amendment to Complaint (Revised), dated March 14, 2017. On appeal, Complainant does not challenge the Agency’s dismissal of claims 1 and 32. Therefore, we will not address those two dismissed claims in this decision. 3 In addition to reprisal for her prior EEO activity, Complainant also alleged sex (female) was also the basis for discrimination in Claims 9-31 only. 2019003441 3 10. Since June 3, 2016, Complainant's request for a copy of the PS 3996 Form, Carrier Auxiliary Control form has been denied; 11. On June 7, 2016, Complainant's supervisor stated, “let's get her for falsifying documents”; 12. On June 8, 2016, Complainant was excluded from the Postmaster’s Town Hall meeting; 13. On June 17, 2016, Complainant was instructed to drive an unsafe vehicle; 14. On June 21, 2016, Complainant's supervisor told her to get away from her; 15. On June 25, 2016, Complainant's supervisor grabbed paperwork from Complainant's hand on two occasions; 16. Claim 16: On June 27, 2016, Complainant's supervisor stated that she was falsifying documents; 17. On July 11, 2016, Complainant was accused of not stopping at a stop sign; 18. On July 18-20, 2016, and August 11, 2016, Complainant was bumped off her assignment; 19. On August 2, 2016, Complainant was accused of working in an unsafe manner; 20. On August 3, 2016, Complainant's supervisor grabbed her PS 3996 Form from her hand; 21. On August 5, 2016, Complainant's request for a spare gas card was denied; 22. On August 5, 2016, Complainant's supervisor stated she was wasting time; 23. On August 5, 2016, Complainant's supervisor pushed her three times; 24. On August 6, 2016, Complainant's break was cancelled; 25. On August 8, 2016, Complainant's supervisor stated, “I'm not playing with you today”; 26. On August 8, 2016, Complainant was spoken to in a loud voice; 27. On August 9, 2016, Complainant was instructed that she was no longer permitted to approach the supervisor's desk; 28. On August 9, 2016, Complainant was required to work her nonscheduled day off; 29. On August 11, 2016, Complainant was not permitted to keep her backpack at her case; 30. On July 20, 2016, August 29-31, 2016, Complainant was charged with unauthorized overtime; 31. On June 21, 2016, June 30, 2016, July 12, 2016, July 30, 2016, August 4-6, 2016, and August 8-9, 2016, Complainant's request to modify to her PS Form 3996, was denied; 33. On September 7, 2016, and September 9, 2016, Complainant was denied eight hours of work; 34. On May 20, May 27, June 7, June 17, June 25, June 27, June 30, July 11, July 18, July 19, August 5, August 13, and August 15, 2016, Complainant was spoken to in a loud tone on the workroom floor, and, while on the telephone, was hung up on; 35. On January 11 and 12, 2017, Complainant was denied the opportunity to complete a PS 3996 Form and/or her request for auxiliary assistance was denied; 36. On January 10, 11, 26, 28, 2017, Complainant was instructed to clock out prior to completing PM office duties; 37. On January 10-11, 2017, Complainant was not permitted to scan packages; 38. On February 10, 2017, Complainant was denied her lunch break; 39. On February 16 and 21, 2017, Complainant was not notified of the office count and not permitted to verify the mail counts; 40. On January 10-11, 2017, Complainant was not permitted to consolidate mail in the office; 2019003441 4 41. On January 13, 2017, inaccurate information was written by management on PS Form 3996’s; 42. On October 20, 2016, management yelled at Complainant and told her she was not in a hostile work environment and to stop saying that; Complainant was also told that she was not allowed to write as such on her PS Form 3996’s; 43. On January 3, 2017, February 15, 2017, February 16, 2017, February 21, 2017, and March 2, 2017, management spoke to Complainant in a derogatory manner; 44. On February 15, 2017, Complainant was not allowed to use certain equipment; 45. Until March 28, 2017, Complainant was restricted from certain areas of the workroom floor; 46. On February 15, 2017 and two other unspecified dates, Complainant was accused of attempting to hit her manager with a piece of equipment; 47. On March 2, 2017, Complainant was threatened by management; 48. On an ongoing basis, management has talked about Complainant in a negative manner to other employees; 49. On September 23, 2016, and November 29, 2016, supervisor stated Complainant was not permitted to ask him questions; 50. On November 28, 2016, January 7, 2017, January 10, 2017, January 11, 2017, and January 17, 2017, Complainant's request to case certain types of mail was denied; and 51. On September 19, 2016, November 10, 2016, November 28, 2016, December 10, 2016, and February 14, 2017, Complainant was given conflicting instructions. 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 timely requested a hearing. On July 11, 2018, the Agency filed a Motion for Decision Without a Hearing and requested the AJ issue summary judgment in favor of the Agency. On July 16, 2018, Complainant filed an Objection to the Agency’s Motion for Summary Judgment and filed an Opposition to the Agency’s Motion for Summary Judgment on July 24, 2018. The AJ assigned to the case determined that the complaint did not warrant a hearing as no genuine issue of material fact existed, and over Complainant's objections, issued a decision without a hearing on March 20, 2019. The AJ noted in the decision the Commission has held that an employer has the discretion to determine how best to manage its operations. The AJ found viewing the evidence in the light most favorable to Complainant, Complainant failed to present any evidence that the unwelcome conduct was based on her sex or reprisal or that the Agency is liable for harassment. The AJ pointed out that Complainant has not shown that anything other than the Agency's belief that she had poor performance and decisions regarding operational business motivated the Agency's actions. The AJ incorporated by reference the Agency’s motion into the AJ’s decision. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. 2019003441 5 On appeal, Complainant contends the Agency’s final order should be reversed and a hearing is warranted because a dispute of material fact exists. Complainant argued RMOs actions were not based on the Agency’s policies or collective bargaining agreement, rather her protected status. Complainant contends Letter Carriers without EEO activity were treated more favorably than her. Complainant argues the Agency did not respond fully to discovery requests or in their affidavits in the Report of Investigation.4 Complainant contends a hearing on the matter would allow her to address her allegations on cross examination of the RMOs. In opposition to Complainant’s appeal, the Agency argues no genuine dispute of material fact exists. The Agency points out that Complainant’s brief on appeal relitigates claims from numerous prior and ongoing EEO cases, dating back to 2012, which have already been or are currently before the Commission. The Agency argues that these are not the claims before the Commission in this appeal. Rather, this case consists of 51 every-day work occurrences that Complainant takes issue with, from being supervised at work to having her daily requests for overtime occasionally denied. In all, Complainant did not rebut the Agency’s legitimate, nondiscriminatory reason for its actions, which is to ask Complainant to perform the tasks of her position as a mail carrier without daily use of overtime. The Agency points out that Complainant failed to identify any similarly situated employees who were treated more favorably with respect to her claims to establish pretext. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).We determine whether the AJ appropriately issued the decision without a hearing. 4 Complainant did not specify what information was not provided or what witnesses statements were allegedly necessary for a hearing. 2019003441 6 The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. 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, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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 order. 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. 2019003441 7 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. 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. 2019003441 8 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 September 10, 2020 Date Copy with citationCopy as parenthetical citation