[Redacted], Ernie S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021003724 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ernie S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003724 Hearing No. 510-2019-00111X, 510-2019-00467X Agency No. 4G-320-0019-18 DECISION On June 16, 2021, 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 May 13, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Postmaster, Level 6, at the Agency’s Remotely Managed Post Office in Fairfield, Florida. The facility was open six days a week and Complainant was the sole employee of the single unit post office. Since October 2015, Complainant was approved to use Family Medical Leave Act (FMLA) leave to care for her disabled mother on Fridays. The APO Postmaster (hereinafter “APO”) was her first-line supervisor. The position was held by APO-P, until he retired in June 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. 2021003724 2 2018. After a few months with an interim APO, APO-C became Complainant’s supervisor in September 2018. Believing that she was subjected to unlawful discrimination based on sex (female), disability (associated with), and in reprisal for prior protected EEO activity, Complainant filed an EEO complaint on February 11, 2018. The complaint (Case No. 4G-320-0019-18) was comprised of the following claims: 1. On November 11, 2017, [APO-P] lied about Complainant when talking with the Manager, Post Office Operations; 2. On December 20 and 28, 2017; January 9, 2018; February 5, 13, 14, 2018, the Agency constantly told Complainant her nonscheduled days would be changed; 3. On December 20 and 28, 2017; January 9, 2018; February 5, 13, 14, 2018 she was scheduled to work on Saturdays (her nonscheduled day off) and required to submit a leave slip when absent; 4. On November 3, 10, and 22, 2017, Complainant’s requests for leave were denied; [APO-P] continued entering 6.5 hours of leave for Saturday and holidays; 5. On March 10, 19 and April 20, 2018, [APO-P] incorrectly scanned packages assigned to Complainant’s office to other States; 6. On March 10, 19, and April 20, 2018, while Complainant was out of the office, management failed to open the office for business; 7. On March 19, 2018, while Complainant was out of the office, management failed to process appropriate reports; 8. On March 10, 19 and April 20, 2018, management refused to make corrections. 9. On February 21, March 15 and 28, 2018, [APO-P] failed to complete Complainant’s pay adjustments; 10. On March 30 2018; April 6, 13, 17, 20, 24, and 27, 2018; May 24 and 25, 2018; June 1 and 8, 2018; and July 6, 9, 13, 2018, [APO-P] failed to return Complainant’s leave slips; 11. On February 7, 21, 26, and 27, 2018; April 16 and 17, 2018; May 14, 2018; and June 28, 2018, [APO-P] failed to respond to Complainant’s work-related emails. Thereafter on April 12, 2019, Complainant filed another complaint (Case No. 4G-320-0081-19) alleging she was subjected to retaliatory harassment when: 1. On September 12, 2018, Complainant was instructed to provide coverage for her own office; 2. On September 19, 2018, and date/s to be specified, Complainant was scheduled to work her nonscheduled day off; 2021003724 3 3. On or about September 28, 2018, [APO-C] made a remark about her prior EEO activity; 4. On October 17, 2018, Complainant was subjected to an investigative interview; 5. On October 17, [APO-C] stated that he would not approve Complainant’s leave slips; 6. On October 24, 2018, Complainant was charged with being absent without officials leave (AWOL); 7. On October 25, 2018, and on January 3, 2019, Complainant was informed she had to clean her office during normal work hours; 8. On or about November 5, 2018, the Agency issued Complainant a Letter of Warning; 9. On December 17, 2018, [APO-C] told Complainant she could no longer use her allotted hours during the Christmas period without prior approval; 10. On January 3, 2019, Complainant was instructed to provide an appointment card for any leave request; 11. On January 3, 2019, [APO-C] told Complainant that she did not have the same rights as other Postmasters; 12. On January 8, 2019, Complainant was instructed to complete a leave slip for the remainder of the day even though she just resigned; 13. On or about January 9, 2019, Complainant was subjected to a spot SDA audit/count2; 14. On or about January 11, 2019, Complainant resigned her position with the Agency due to continued harassment; 15. On February 5, 2019, Complainant was informed that she would have to pay for the postage if she wanted her last check mailed to her. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing for each case. The AJ assigned to the matters held a conference on both cases. Over Complainant's objections, the AJ granted the Agency’s April 13, 2020 motion for a decision without a hearing. On May 6, 2021, the AJ issued a decision by summary judgment finding no discrimination was established. Based on a review of the record, the AJ set forth the following factual background in her decision. On October 31, 2017, Complainant requested LWOP/FMLA leave for November 3, 2017, but her request was denied due to the “needs of the service”. Complainant, however, insisted that Saturdays and Sundays were her scheduled days off. Consequently, the next day, APO-P and Complainant met with the Manager of Customer Services (“Manager”) regarding Complainant’s schedule. Manager clarified that Complainant should not be charged leave for 2 On appeal, Complainant clarifies that she was not the subject of an audit but was asked to conduct one. She contends such action must be done by two individuals and she could not do it alone. 2021003724 4 Saturdays because they were her nonscheduled days, but she could be asked to work Saturdays if the needs of the service required. Manager also reiterated that when Complainant was out on leave, the office still required coverage. Complainant and APO-P were advised to improve their communication, ensure coverage for the Post Office, and that Complainant could approve her own leave (i.e. did not need to submit leave slips). In late December 2017, APO-P provided Complainant with thirty-days notice that she would have to work Mondays through Saturdays3, while maintaining her FMLA leave on Fridays. Complainant was reminded of the impeding schedule change on January 9, 2018, and in a February 5, 2018 email. However, noted the AJ, Complainant continued to assert that Saturday was her day off and she refused to work. Instead, APO-P and others had to work on Saturdays to provide coverage. Complainant contended that when APO-P covered for her absences, he failed to get the work done or did so with errors. APO-P retired in June 2018 and, in September 2018, APO-C became Complainant’s supervisor. When APO-C instructed Complainant to submit leave requests to him, she explained that she approved her own leave. In response, APO-C stated that if she did so, then Complainant would be responsible for finding coverage when needed. In mid-September 2018, APO-C told Complainant she would have to work on October 6 and 20 (Saturdays) to cover for another employee. Complainant said she would not. APO-C informed Complainant that it was within his authority to instruct her to work on her nonscheduled day and she was expected to report to work on those days. Additionally, he told her to call the unscheduled leave line if she did not report as ordered. Complainant failed to report to work and did not call the unscheduled leave line. As a result, on October 17, 2018, APO-C conducted an Investigative Interview. Complainant complained about the lack of privacy, asserting that the interview was witnessed by a clerk and customers. Thereafter, on October 31, 2018, Complainant was issued a Letter of Warning for not reporting to work on October 6 and 20, 2018, nor calling the unscheduled leave line as instructed. In January 2018, the Office of Inspector General (OIG) issued its findings from an investigation stemming from an October 27, 2017 anonymous hotline complaint alleging that Complainant misused FMLA leave when she attended a real estate closing. The OIG found misuse of FMLA by Complainant when she was working for a mortgage company while being paid by the Agency. On January 8, 2019, Complainant submitted her resignation to APO-C’s supervisor. The next day, she informed APO-C of her decision, noting that her last day would be January 11, 2019. On her last day, Complainant was required to come in and transfer her responsibilities to the next employee. Instead, observed the AJ, Complainant wanted to leave after signing the necessary paperwork. Consequently, APO-C required her to use leave for the rest of the day. 3 The record indicates that under this schedule, Complainant would have Wednesdays (instead of Saturdays) as her nonscheduled day. 2021003724 5 Three weeks later, Complainant’s representative contacted APO-C regarding her last paycheck. Agency policy required that a final paycheck be picked up or mailed; it could not be direct deposited. When Complainant’s representative asked that the check be mailed, APO-C remarked that Complainant would have to pay for the certified mail postage. However, noted the AJ, APO-C followed his supervisor’s advice and did not charge Complainant. The AJ observed that the focus of Complainant’s harassment complaint concerns her mistaken belief that, as a rural Postmaster with Saturdays/Sundays off, her schedule should never change, irrespective of the workload or Agency needs. Complainant seemed to believe, stated the AJ, that she should be able to take leave whenever she wanted and others should be responsible for finding coverage for her absences. Likewise, she did not think she was obligated to cover for her colleagues. The AJ concluded that the Agency had legitimate reasons for instructing her to work on some Saturdays, including the office workload, coverage for the absence of others, and the limited availability of APO to cover for her. Moreover, the record reflected that Complainant disregarding her supervisor’s instructions by not only failing to report for duty but in also not calling in on the leave line. Additionally, the AJ noted that Complainant repeatedly disregarded her supervisor’s instructions, as illustrated by her failing to provide an appointment card when requesting sick leave and working additional holiday hours without approval. As for her claim that she was not provided with privacy during her Investigative Interview, the AJ did not find the claim was supported by the record. Regarding APO-P’s purported failure to return her timesheets, Complainant had not shown how she was harmed by the alleged action. According to the Agency, the documents were maintained at the Jacksonville location. The AJ reasoned that Complainant did not establish that the Agency’s actions were motived by her protected bases. Rather, the AJ found that Complainant’s ongoing refusal to work as required by her position, sometimes a schedule she did not desire, was the reason for her resignation - not unlawful discriminatory harassment. Subsequently, on May 13, 2021, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant simply reiterates her claims and disputes the AJ’s accounting of the facts, without providing any supportive evidence. For example, Complainant contends she was “constantly being told” her nonscheduled days would be changed which was not applicable to the Postmaster position; that her leave slips were not returned; that she was issued a LOW for simply not working on her nonscheduled day off “when I had prior obligations”; and that cleaning her office during normal work hours would have violated the union contact. She denies changing the time for her Investigative Interview from noon, when the office was closed and more privacy available, to 11:00 a.m. She disputes the findings of the OIG report, arguing that she “never worked for a private mortgage company” and the alleged incident only involved a “5 minute time frame”. According to Complainant, APO-C was not limited in his ability to cover for her. In closing, Complainant maintains she should not have been asked to work on Saturdays and “this all started because I took FMLA.” 2021003724 6 In response, the Agency argues that Complainant does not raise any genuine issues of material fact in her appeal statement. Rather, any disputes concern immaterial matters and Complainant “uncorroborated, naked assertions are simply not sufficient to meet [her] burden [of proof].” The Agency contends that Complainant fails to identify any evidence or testimony in the record to support her arguments or demonstrate a mistake of fact in the AJ’s decision. Instead, notes the Agency, “Complainant steadfastly believes that she could not be required to work a regular day off at any time under any circumstances.” Citing the Administrative Support Manual, the Agency counters that normal, part-time office postmasters work six days a week and schedule changes are common place. In the Agency’s view, Complainant has not proffered supportive evidence that is at odds with the AJ’s conclusions. Rather, the AJ’s decision is based on sound factual finds and the law. ANALYSIS AND FINDINGS Standard of Review 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”). Summary Judgment 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 2021003724 7 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. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Our review of the evidence of record reflects that it has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003) (AJ may issue a decision without a hearing only after determining that the record has been adequately developed). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 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. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The instant case presents several discrete actions wherein Complainant believes the Agency was motivated by discriminatory animus for her sex, association with a disabled parent, and prior 2021003724 8 EEO activity. However, we find that in many of the instances Complainant has failed to show how she was even harmed and, in the remaining, the Agency has provided legitimate, non- discriminatory reasons for its actions. For example, Complainant contends that when APO filled in for her, when she did not work on requested Saturdays, he inaccurately scanned some packages and failed to process some reports. She has not shown how this resulted in a personal loss or harm to a term, condition, or privilege of her employment. Complainant was not, for instance, rating poorly in an evaluation because of the APO’s erroneous scans. Similarly, Complainant has not described how she was harmed by the APO’s failure to return her leave slips. Regarding actions such as the LOW or being required to take leave, the record reflects legitimate reasons. While Complainant argues the LOW was discriminatorily issued because she had “prior obligations”, not only does she fail to establish a nexus with her protected bases, but she does not she acknowledge that the LOW was based on her failure to report to work as instructed and for failing to call the leave line so that coverage could be obtained. On her last day, the expectation was that Complainant would transition her responsibilities to the next employee. Instead, she left early, and management required her to take leave for that unworked time. In the majority of claims, Complainant identifies specific dates where she was scheduled to work on a Saturday. While she claims this was discriminatory, the Agency has presented several legitimate reasons; namely, the needs of the office, whether it was the workload for that office or to cover the absence of another employee. She argues that her position guaranteed her a schedule with Saturdays off, but does not provide evidence to support her assertion. Complainant has not shown in any of these instances that the Agency’s proffered reasons are unworthy of belief and that, instead, its actions were more likely than not motivated by discriminatory animus. On appeal, Complainant asserts that these actions were “because I took FMLA”. The Commission does not have jurisdiction over that statute, and use of the FMLA is not considered a basis under the Rehabilitation Act. See Lopez v. United States Postal Service, EEOC Appeal No. 0120053846 (March 1, 2007). Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. 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 2021003724 9 from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, 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, her sex, disability (associated with a family member with a disability), or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. We note at the outset that Complainant's failure to prove that the discrete actions by Agency, discussed above, were due to her protected bases, precludes a finding of discriminatory harassment regarding any of those incidents. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As to the remaining incidents, none of them, either individually or collectively, are severe or pervasive enough to engender a hostile work environment. Lastly, Complainant has not shown that she was subjected to unlawful discriminatory harassment that caused her to resign from her position. At all times the ultimate burden of persuasion remains with a complainant to demonstrate by a preponderance of the evidence that the agency's reasons were pretextual or motivated by intentional discrimination. Here, Complainant has failed to do so. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency’s final order upholding the AJ’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. 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 2021003724 10 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. 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 2021003724 11 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 January 31, 2023 Date