[Redacted], Catherina B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionAug 8, 2022Appeal No. 2022003024 (E.E.O.C. Aug. 8, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catherina B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003024 Hearing No. 471-2020-00113X Agency No. 4J-493-0006-20 DECISION On May 6, 2022, 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 6, 2022, 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 Postmaster, EAS- 21 at the Agency’s Jenison Post Office facility in Jenison, Michigan. On February 7, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2022003024 2 1. On October 25, 2019, she was removed from her office, and subsequently, on October 27, 2019, she was sent to an office 106 miles away; 2. On November 14, 2019, she was given a pre-disciplinary interview (PDI) and charged Absent Without Leave (AWOL) for November 4-8, 2019; 3. On a date to be specified, she was placed on Administrative Leave; 4. On November 22, 2019, she was instructed not to go to her office or communicate with her employees; 5. On or around December 10, 2019, she was assigned to a lower level position at a new duty station about 30 minutes from her house; 6. On dates to be specified since December 10, 2019, her leave requests and schedule change requests were denied; 7. On dates to be specified since December 10, 2019, she was denied breaks and told to work through lunch, told not to leave her cubicle without permission, could not take her laptop home, could not contact her representative(s) without management permission. and was not permitted to do Operation Santa; 8. On March 4, 2020, she received a Notice of Proposed Letter of Warning in Lieu of a Fourteen Day Suspension for Failure to Follow Instructions dated January 15, 2019; and 9. For Complainant’s Family Medical Leave Act (FMLA) Sick Leave Request covering the dates December 23, 2019 through January 4, 2020, the Human Resources Manager for the Greater Michigan District denied Complainant’s request and charged her with AWOL until September 2020, when approval was finally granted. 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 had been Postmaster of Jenison since December 24, 2014. The record indicates that the relevant Human Resources department had been notified by employees within the Jenison Post Office of allegedly inappropriate behavior by Complainant including, but not limited to, unwanted physical contact, comments of a sexual or perverse nature, bullying, and intimidating behavior. A Climate Survey of the Jenison Post Office was conducted between 2022003024 3 September 16 and 20, 2019, where 63 employees were interviewed. The Climate Survey indicated that Complainant’s management style caused the feeling of “walking on egg shells” when she was in the building. Within the Climate Survey, the Complainant was described as being “two-faced, fake, pressures employees, micromanages, lies, bullies, and threatens employees with their jobs.” Employees reported to the surveyors of Complainant “touching” and “hugging” others and violating personal space. Employees further reported fear of retaliation, so they did not report the behavior. On October 25, 2019, Complainant’s supervisor (S1) and the Human Resources Manager for the Greater Michigan District (HR1) met Complainant at her office and read to her Workplace Assessment Results. The results included information from the Climate Survey. HR1 informed Complainant that Complainant was being removed from the office and instructed Complainant to leave her office keys. S1 wrote that Complainant was removed from the office temporarily until all of the issues brought forth could be thoroughly investigated and addressed. On Sunday, October 27, 2019, S1 attempted to call Complainant. The call went to a voicemail inbox that was full. S1 sent Complainant a text message with the following: Your voice mailbox is full. Called to discuss what we are going to do moving forward. You stated Friday you need help, here is how we will help you improve your management skills. [Postmaster of Owosso Post Office] has agreed to mentor & work with you for the next month. The first two weeks will be in her office - Owosso - and the second two weeks she will work with you in Jenison. Please report to Owosso tomorrow at 8am. Thank-you. On October 28, 2019, Complainant reported to work at the Owosso Post Office. On November 1, 2019, she sent an email to S1 requesting to take the required computer training closer to home at the Grandville Post Office from November 4-8, 2019. Complainant did not receive a response from S1. From November 4 to 8, 2019, Complainant did not report to the Owosso post office; instead, she completed training activities while teleworking from home. Upon learning that Complainant did not report to Owosso, S1 emailed Complainant indicating that he did not approve her request with a reply and that when something is not approved the previous instruction is what should be followed. Complainant responded to the email providing her rationale for her behavior while also submitting a PS Form 3971 requesting Annual leave for the week of November 4. On November 15, 2019, S1 conducted an investigative interview where Complainant, Complainant’s Union Representative (UR), and a note recorder were present. S1 asked Complainant clarifying questions regarding the week of November 4th. During the meeting, S1 placed Complainant on fully paid Administrative Leave beginning November 18, 2019. The Administrative Leave lasted until Complainant was placed in a temporary nonsupervisory detail beginning December 10, 2019. S1 wrote in an Administrative Action Request form that 2022003024 4 Complainant was removed from office temporarily until all of the issues brought forth could be thoroughly investigated and addressed. S1 notified Complainant via letter dated December 9, 2019, to report to the Marketing Department of the Greater District on December 10, 2019. The position to which she was assigned was a lower EAS Level than her postmaster position. Complainant continued to be paid as a Level 21. While working at the Marketing Department, Complainant submitted various leave requests and requests for schedule changes. Complainant’s supervisor while in the position, Manager Consumer and Industry Contact (MC1), denied some of these requests. Included among the denied requests was a submission for December 23, 2019, through January 4, 2020, and Complainant did not work on these dates. Complainant was charged with AWOL for this period until approval for FMLA Sick Leave was granted in September 2020. MC1 reported that she approved or disapproved Complainant’s leave requests and/or changes of schedule based on the needs of the service. MC1 further reported that every request that was disapproved had the reason why and what needed to be done. Regarding claim 7, MC1 indicated that Complainant was allowed to take her breaks and was not told to work through lunch. MC1 stated that Complainant was allowed to leave her cubicle for breaks and to conduct business but was required to communicate with management if she would be gone for extended periods of time. MC1 stated that Complainant was allowed to take her laptop home on occasion but not on a regular basis because her position was not allowed to work from home. MC1 reported that Complainant did not ask to contact her representative, and if she had asked, she may have been allowed based on the workload. MC1 stated that MC1 told Complainant to contact her representative while on her break. MC1 reported that Operation Santa was done on a voluntary basis. MC1 indicated that since Complainant could not complete her current duties, MC1 did not want to add more duties to her workload. MC1 reported that she told Complainant that if Complainant wanted to respond to Santa Letters on her own time she could, but Complainant denied the offer. On January 15, 2019, S1 wrote a Notice of Proposed Letter of Warning in Lieu of a Fourteen Day Suspension for Failure to Follow Instructions. The charge of failure to follow instructions was connected to two instances. First, S1 cited to Complainant’s not reporting to Owosso Post Office November 4-8 despite the instructions contained in the October 27 text. Second, S1 cited to Complainant’s request of leave for the week of November 4-8 as not complying with prior directions on the proper submission of leave requests contained in a May 17, 2019, email. The Manager of Operations Program Support, Grand Rapids Michigan District Office (MOPMS) sustained the Letter of Warning in a decision letter dated June 9, 2020. 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 2022003024 5 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”). 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 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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). 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); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the 2022003024 6 victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In this case, the record establishes legitimate, nondiscriminatory reasons for the personnel actions at issue. Furthermore, the record does not contain evidence sufficient to establish that the Agency’s actions were motivated by discrimination. Regarding claims 1, and 3 - 5, the record establishes that the Agency performed these actions based on the results of a Climate Survey that revealed potential deficiencies in Complainant’s management style. Complainant’s removal from the Jenison Post Office, Administrative Leave, and alternative assignment were meant to allow an investigation into the alleged deficiencies without Complainant’s presence potentially affecting the investigation. Regarding claims 2 and 8, S1 provided the rationale that Complainant had not followed his instructions to report to the Owosso Post Office or how to properly request leave, which was sustained by MOPMS. Regarding claims 6 and 9, MC1 indicated that she based any response to requests for leave and/or changes of schedule on the needs of the service. Regarding claim 7, we find that Complainant has not shown by persuasive evidence that all of the incidents happened. Even if some of the incidents did occur, the Agency provided legitimate, nondiscriminatory reasons, including but not limited to a requirement to communicate with management if Complainant would be gone for extended periods of time, no regular home laptop access due to Complainant’s position not being a telework position, and workload requirements. Complainant has not shown that these reasons were a pretext for discrimination or retaliation. Regarding Complainant’s claim of harassment, we find that Complainant failed to prove that the conduct complained of was based on discrimination or retaliation. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination or retaliation as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s decision finding no discrimination. 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. 2022003024 7 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. 2022003024 8 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 August 08, 2022 Date Copy with citationCopy as parenthetical citation