Myesha F.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Oct 15, 2020

2020003685 (E.E.O.C. Oct. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myesha F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003685 Hearing No. 480-2014-00861X Agency No. 1F-901-0017-14 DECISION On February 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 31, 2020 final order 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Level 4 Mail Handler at the Agency’s Los Angeles Processing and Distribution Center (LA P&DC) in Los Angeles, California. On March 11, 2014, Complainant filed a formal EEO complaint in which she claimed: (a) Discrimination on the basis of disability when, beginning on November 25, 2013, she was denied the opportunity to work overtime and holidays. 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. 2 20200003685 (b) Discrimination on the basis of sex when, on March 12, 2014, she was informed that she would no longer be labeling skids. (c) She was subjected to harassment/a hostile work environment in retaliation for engaging in EEO activity concerning claims (a) and (b) when: (i) beginning November 25, 2013, she was denied the opportunity to work overtime and holidays; (ii) on March 12, 2014, she was informed she would no longer be labeling skids; (iii) on May 3, 2014, she submitted a PS Form 1767, Report of Hazard, Unsafe Condition or Practice, and did not receive a response; (iv) on May 22, 2014, she was instructed to sign a PS Form 3971, Request for or Notification of Absence, for not reporting for overtime on May 18, 2014, her non-scheduled day; (v) on May 22, 2014, she was instructed to unload rolling stock by hand, rather than using the forklift; (vi) on May 27, 2014, she was harassed about her work assignment; and (vii) on May 28, 2014 and on other dates, she was required to perform the assignments of other employees, as well as her own. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion to Dismiss, or in the Alternative, Motion for Decision Without a Hearing. On January 23, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final action adopting the AJ’s decision. The instant appeal followed. Complainant did not submit a timely brief on appeal. 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. 3 20200003685 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). 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 to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant 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. Disparate Treatment A claim of disparate treatment is examined under the three-party 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 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. 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 on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant identified her disabilities as cervical and lumbar spine pain. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. The AJ correctly determined, based on the evidence developed during the investigation, that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Claim (a) and (c)(i) Complainant has worked as a Level 4 Mail Handler at the Agency’s LA P&DC in Los Angeles, California. The functional purpose of a Level 4 Mail Handler is to load, unload, and move bulk mail. One of the primary duties and responsibilities include unloading mail from trucks. She was also qualified to do higher level work, such as operating equipment. During the relevant period, the Supervisor, Customer Service was Complainant’s first line supervisor. 4 20200003685 The physical requirements of a Level 4 Mail Handler state: “Applicants must be physically able to perform effectively the duties of the position, which require arduous exertion involving prolonged standing, walking, bending and reaching, and may involve the handling of heavy containers of mail and parcels weighing up to 70 pounds.” The AJ noted that on November 25, 2013, Complainant worked about two and half hours of overtime in her bid assignment as a Mail Handler. While working overtime, Complainant was involved in an accident while operating a Power Industrial Truck, also referred to as a “forklift.” On November 26, 2013, Complainant was instructed to refrain from forklift driving, and her work status was listed as “modified work.” On January 16, 2014, the Department of Labor Office of Workers’ Compensation Programs (OWCP) notified Complainant that she would receive compensation for “a minor injury that resulted in minimal or no lost time from work.” A copy of December 2, 2013 Duty Status Report instructed Complainant to return to limited duty from December 2, 2013 to January 9, 2014, and listed her medical restrictions as follows: lift/carry no more than 10 pounds; pull or push no more than 10 to 20 pounds on wheels; bend/stoop no more than half an hour to an hour at a time, for no more than three hours per day; no twisting; no forklift driving; and wear back support. A Duty Status Reports dated January 7, 2014 and February 6, 2014 stated the same limitations, meaning that Complainant had medical restrictions from December 2, 2014 to March 3, 2014. Complainant’s impairments were temporary and lasted only around 3 months. A Duty Status Report dated March 3, 2014 noted that Complainant could return to regular duty and that she was “discharged as cured.” During the period she was on limited duty prior to her release on March 3, 2014, Complainant worked with the General Expeditors labeling mail. She acknowledged that during this period she was unable to perform the essential functions of her Mail Handler position with or without accommodation. Complainant was not eligible for overtime work when on limited duty because she was not on the overtime desired list for the Clerk Craft and there was a full complement of Expeditors available for such overtime. Complainant claimed that she should have worked overtime on the following holidays: December 25, 2013; January 1 and 20, 2014; and February 17, 2014. However, she was not on the overtime desired list for the Clerk craft. The supervisor (male) stated that Complainant’s “doctors’ medical restrictions from her ‘near miss’ accident [of November 25, 2013] prohibited her from being able to perform the duties of the overtime called.” Another supervisor (female) (Supervisor 2) stated that, “[a]fter being released by her doctor, she has been working overtime in her unit and other units as called.” 5 20200003685 During the fall of 2013 until January 31, 2014, Complainant was on a detail assignment to the Combined Federal Campaign (CFC). There was no overtime associated with a detail assignment. Here, the AJ correctly noted that Complainant herself acknowledged that she was unable to perform the essential functions of her Mail Handler position with or without accommodation from November 26, 2013 until March 3, 2014, during which time she was placed on limited duty doing General Expeditor work even though she was not in the Clerk Craft. The evidence supports the AJ’s determination that Complainant has not rebutted the Agency’s non-discriminatory explanation that the reason Complainant was not given overtime was not because of alleged disability but because she was not in the Clerk Craft and on the Clerk Craft’s overtime desired list. We conclude that the AJ properly found that there is no evidence of record to dispute this assertion. Claims (b) and (c)(ii) Regarding claims (b) and (c)(ii), the record reflects that on March 13, 2014, Complainant’s supervisor informed her that she would no longer be labeling skids because “her medical documentation released her to regular duty her bid assignment.” Further, Complainant’s bid job assignment as a Level 4 Mail Handler does not involve labeling skids. The record reflects that a named Level 5 Mail Handler Equipment Operator who also works Tour 2, was not treated more favorably than Complainant because she was also instructed she would no longer be labeling skids. Complainant failed to prove, by a preponderance of the evidence, that the proffered reason for removing Complainant from labeling skids was a pretext designed to mask discrimination. Beyond her bare assertions, there is simply no evidence to support her discrimination claim. Harassment 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 a protected basis - in this case, sex, disability and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, we note that we have already determined there was no discriminatory motivation at play in the issues involving overtime/holiday opportunities and the decision to reassign Complainant back to her bid position and away from labeling skids. Therefore, inclusion of these incidents in her claim of harassment is precluded based on our findings that Complainant failed to establish that these actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 6 20200003685 Regarding claim (c)(iii), Complainant claimed that on May 3, 2014, she submitted a PS Form 1767, Report of Hazard, Unsafe Condition or Practice, and did not receive a response. The AJ noted that the first time the supervisor received a PS Form 1767 “Report of Hazard, Unsafe Condition or Practice,” from Complainant concerning the loading and unloading of trailers with forklifts was on or around June 10, 2014. When the supervisor received a copy of Complainant’s PS Form 1767, the supervisor approached two different maintenance and safety employees to ensure that the problem Complainant raised was resolved. The day after he received a copy of PS Form 1767, the supervisor verbally informed Complainant that the problem had been resolved. The AJ further noted that Complainant did not identify any other Mail Handler employees in her work unit who were similarly situated to Complainant or who were treated more favorably than her. Complainant also does not identify any other Mail Handler employees who submitted a PS Form 1767. Regarding claim (c)(iv), Complainant claimed that on May 22, 2014, she was instructed to sign a PS Form 3971, “Request for or Notification of Absence,” for not reporting for overtime on May 18, 2014, her non-scheduled day. The supervisor explained that Complainant was present during several weekly safety talks where the Standard Operating Procedures for being Absent from Overtime (AOT) was discussed by several different Supervisor Customer Services. He stated that on May 22, 2014, he informed Complainant that she needed to fill out a PS Form 3971 because she did not come in on her day off, Sunday May 18, 2014. Regarding claim (c)(v), Complainant alleged that on May 22, 2014, she was instructed to unload rolling stock by hand rather than using the forklift, the supervisor acknowledged instructing Complainant to unload rolling stock by hand because “the rolling stock (wire containers) were less than half full and contained small1st class parcels according to her bid assignment.” Regarding claim (c)(vi), Complainant alleged that on May 27, 2014, she was harassed about her work assignment. The supervisor explained that it is normal for all employees to be used in other areas as needed. He also confirmed at that time Complainant was assigned to the McKinley dock at the LA P&DC and that all work she completed was on the McKinley dock. Further, the supervisor explained that he moved Complainant off the National Distribution Center (NDC) assignment because “I rotate the assignments for ergonomic reasons and to allow everyone a change of work. The NDC person off-loads but doesn’t take mail as far as the drop shipment drivers. I might have a … conflict or a no-show on the schedule. The NDC mail stays is often processed stays on the dock for dispatch. However, the drop-shipment mail has to be cleared (documents) off-loaded and go into processing … and then returned to the dock for dispatch …it might have been flown to another facility.” 7 20200003685 Regarding claim (c)(vii), Complainant asserted that on May 28, 2014 and other dates, she was required to do other employee’s assignments as well as her own, the AJ noted that Complainant’s claim involved vague allegations. However, the AJ noted that Complainant conceded that it was common for the supervisor to adjust employees’ assignments throughout the day as operational needs change. Here, the record fully supports the AJ’s conclusion that the undisputed evidence gathered during the investigation did not establish that Complainant was subjected to harassment based on sex, disability and prior protected activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment claim was also proper. We discern nothing in the present record reflecting that the Agency’s conduct on this issue, or in any other matters, reflects hostile or abusive conduct based on Complainant’s sex, disability or prior EEO activity. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 8 20200003685 In the absence of a legible postmark, 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. 9 20200003685 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 15, 2020 Date