[Redacted], Cindy D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jul 20, 2022

Appeal No. 2021001112 (E.E.O.C. Jul. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cindy D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001112 Hearing No. 520-2020-00289X Agency No. 4B-020-0064-19 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 3, 2020 final order concerning an 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Agency’s decision finding no discrimination is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, P-06, at the Agency’s Chelsea Incoming Mail Center (IMC), Chelsea, Massachusetts. The record indicates that on June 26, 2019, Complainant contacted an EEO Counselor regarding her complaint. Unable to resolve the matter informally, Complainant was issued a right to file a formal complaint. 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. 2021001112 2 On October 7, 2019, Complainant filed her complaint alleging discrimination and harassment based on age (over 40), disability, and in reprisal for current EEO activity when: 1. Beginning on March 18, 2019, and ongoing to include May 4, 2019, she was harassed by coworkers. 2. On May 21, 2019, she was issued a Letter of Warning (LOW). 3. On May 28, 2019, she was not allowed to work her prescheduled overtime. 4. On May 4, 2019, and May 30, 2019, she was charged Absent Without Leave (AWOL). 5. On or about May 30, 2019, she was issued a 14-Day Suspension. 6. On June 7, 2019, she was issued a 14-Day Suspension. 7. On June 10, 2019, she was issued a 7-Day Suspension. 8. On July 25, 2019, she was placed on Emergency Placement.2 Complainant did not challenge the Agency’s framing of her complaint. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. Complainant indicated that she suffered from an anxiety disorder, depression, high blood pressure, and diabetes and she was able to perform her duties. Regarding claim 1, the record indicates that on March 18, 2019, Complainant and her coworker (C1), female, a Mail Processing Clerk, had an altercation. They were formerly good friends for past six years. Complainant reported the foregoing incident to her first level supervisor (S1). On March 22, 2019, management initiated an investigation of the incident by interviewing Complainant, C1, and other witnesses related to the incidents. During the investigation, C1 indicated that on March 18, 2019, she saw Complainant in her flat case area going through things and her personal items were in that area. C1 also saw Complainant taking a tub that C1 had been using. C1 tried to take the tub. 2 Although Complainant indicated the incident occurred on June 25, 2019, the record indicates that she was issued the Emergency Placement at issue dated July 25, 2019. 2021001112 3 As C1 was telling Complainant that she was using that tub and asking what Complainant was doing in her area, Complainant started screaming at C1 and telling C1 she needed a tub. As C1 was pointing to a stack of tubs right next Complainant, Complainant told her, “Fucking Cunt” and “Go fuck your mother!” C1 stated that Complainant also called her a cry baby and a controlling lunatic, calling her names, and gave her the finger. On May 30, 2019, the Agency Human Resources Manager informed management that the investigation was completed. The investigation revealed that both Complainant and C1 exhibited ongoing inappropriate conduct. Further, the investigation’s findings did not support claims of assault or unprovoked harassment as alleged. Based on the investigation result, management took no disciplinary action against Complainant or C1. S1 noted that after the above incident, upon Complainant’s request, she altered the break schedule so Complainant and C1 would not go on break at the same time. Complainant acknowledged that she was allowed to take a different break schedule from C1. Complainant indicates that C1 however on several occasions came into a break room while Complainant was taking her break. Complainant did not claim that she encountered a similar altercation with C1 on any other occasion. Regarding claims 2, 4, and 6, S1 stated that Complainant was charged the May 4 and 30, 2019 AWOLs because she was absent from her official duties without permission for 3.23 hours and for 7.03 hours, respectively. As a result of the foregoing absences, Complainant was issued a notice of suspension of 14 days on June 7, 2019, effective July 6, 2019. The 14-day suspension was later expunged from Complainant’s record on August 26, 2019, via a grievance. Complainant’s second level supervisor (S2) issued Complainant the May 21, 2019 LOW due to her unacceptable conduct on May 4, 2019. Specifically, S2 stated that on May 4, 2019, from approximately 1:15 am until 3:00 am, Complainant sat at the supervisor’s desk refusing to do any work although she was instructed not to sit around but to go to her unit upon her arrival. The record indicates that Complainant’s scheduled work hours were from 1:00 am to 9:30 am. The subject LOW was reduced to an official discussion on August 26, 2019, via a grievance. Regarding claim 3, S1 indicated that the overtime was given on a day-to-day basis. S1 also indicated, and the record reveals, that Complainant was not given overtime because she did not report to work on May 28, 2019. Regarding claim 5, the Agency indicated that Complainant was not issued the May 30, 2019 suspension. The record is devoid of the suspension. Regarding claim 7, S2 indicated that Complainant was issued the 7-day suspension on June 10, 2019, for her unacceptable conduct. S2 noted that despite receiving instructions on several occasions, Complainant called C1, a “fucking dirtbag,” “You are dying to start shit with me,” and “I will flip out on you” on May 25 and 30, 2019. 2021001112 4 For issuing the subject suspension, S2 noted that he considered Complainant’s prior LOWs issued on May 21, 2019, January 8, 2019, and August 16, 2018; and her prior suspensions issued on February 8, 2019 and June 7, 2019. The 7-day suspension was reduced to a LOW on August 26, 2019, via grievance. Regarding claim 8, S2 indicated that he issued Complainant the July 25, 2019 Emergency Placement in Off Duty Status for her failure to follow instructions to go to the parcel bullring after multiple instructions. S2 noted that after Complainant was told she was placed off duty, she disrupted the work floor screaming, “Help, Help, Pops” loudly creating a complete disruption; and she told S2 and others “fucking coward” and other unintelligible words. The Emergency Placement was subsequently expunged via a grievance pending arbitration on April 13, 2020. The AJ found that Complainant failed to show that any of the discrete actions were motivated by discrimination and with regard to her claim of harassment, Complainant failed to show that it was related to any protected basis of discrimination. The Agency issued its final order adopting the AJ’s decision. The instant 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. 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 to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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. The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, Complainant did not claim that she was denied a reasonable accommodation for her disability. 2021001112 5 Complainant’s supervisors issued Complainant AWOLs, a LOW, and suspensions due to her attendance issues and her conduct disrupting postal operations. Regarding her overtime claim, there is no evidence that Complainant worked on May 28, 2019, or overtime was available on that day and was denied. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant’s supervisors were responsible for making business decisions, assuring compliance with Agency policy and procedures, monitoring leave, managing the workplace and work hours, and taking actions to address attendance and conduct issues. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Upon her reporting the March 18, 2019 incident, management properly initiated an investigation by interviewing Complainant, C1, and other witnesses related to the incidents. The investigation resulted in findings that both Complainant and C1 exhibited inappropriate conduct and that there was no assault or unprovoked harassment as alleged. After the incident, as per Complainant’s request, management placed Complainant and C1 on a different break schedule to prevent them from a possible future confrontation. Although Complainant claimed that C1 did not adhere to C1’s break schedule on some occasions, she did not claim that she was subjected to a similar altercation with C1 on another occasion. Complainant indicated that on September 30, 2019, she attempted to submit a written statement to S2 about C1 but S2 grabbed the paper out of her hand, crumbled it up, threw it on the floor, and screamed at her that he did not have to read it and he did not want to talk to her. Upon review, we agree with the AJ that on this isolated single occasion, S2 was frustrated with Complainant and C1 not working well together. Further, there is no evidence S2’s action was motivated by any discrimination. Also, there is no indication that any of C1’s actions were motivated by discrimination. 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. There is no indication that any alleged action was motivated by discrimination or the alleged harassment was based on discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 2021001112 6 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. 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. 2021001112 7 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. 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 July 20, 2022 Date