[Redacted], Grayce H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 3, 2022

Appeal No. 2022002093 (E.E.O.C. Nov. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Grayce H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022002093 Agency No. 1F-341-0053-21 DECISION On March 1, 2022, Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a February 17, 2022 final Agency decision (FAD) on 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. BACKGROUND During the period at issue Complainant was employed by the Agency as a Mail Processing Clerk, PS-06 at the Madison Wisconsin Processing & Distribution Center in Madison, Wisconsin. On September 17, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her race/color (African American/Brown) and reprisal (prior EEO activity under Title VII) when she was terminated during her probationary period on September 9, 2021. Complainant was terminated by the Supervisor of Distribution Operations (“supervisor” Caucasian), her first line supervisor. 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. 2022002093 2 She previously worked for the Agency as a probationary employee, and the same supervisor decided to terminate her on or about February 2, 2021 but allowed her to resign instead. Complainant started an informal EEO complaint regarding this prior separation about this two days later. The supervisor learned of this prior informal EEO complaint when the EEO counselor contacted her by February 18, 2021. The acting Manager of Distribution (“manager” light skinned Hispanic), who the supervisor directly reported to and was Complainant’s backup supervisor learned of this prior informal complaint when the EEO counselor contacted her on March 5, 2021. Also, Complainant previously worked for the Agency from at least April 4, 2021 - July 26, 2021, and the supervisor gave her a job discussion on June 13, 2021, for irregular attendance. Complainant initiated EEO counseling on this, and on September 8, 2021, just prior to Complainant’s September 9, 2021 termination before us, she and the supervisor had an EEO redress meeting on Complainant’s job discussion EEO claim. After an EEO investigation on the complaint before us, the Agency gave Complainant a notice of right to request a hearing before an EEOC Administrative Judge. She requested a FAD without a hearing. The Agency then issued a FAD finding no discrimination. Complainant was appointed on July 31, 2021, and her probationary period was to October 28, 2021. On August 27, 2021, the supervisor gave her a 30-day evaluation with a rating of unacceptable. The supervisor made handwritten and typed notes she used to prepare the evaluation and/or prepare for the evaluation meeting with Complainant. The notes reflected the following. On August 24, 2021, Complainant got into a confrontation with the manager about an assignment that included Complainant shouting “F-bombs.” Complainant took extra breaks, resisted some assignments, and would “reassign” herself. On August 21, 2021, Complainant took two lunch breaks, and on August 22, 2021, after being assigned to the Low-Cost Tray Sorter (LCTS) she self-assigned herself to a case saying there was nothing at the LCTS, but there was mail there. Then later the same day the supervisor looked throughout the building but did not find Complainant, so she had her paged to go to the LCTS. Complainant came out from what appeared to be a hiding place in the garage. She then got contentious saying “you people” meaning management needed to do things right and put her on before a less senior coworker (Automated Parcel Bundle Sorter “APBS coworker” African American/Brown, no prior informal or formal EEO complaints). Complainant then reassigned herself from the LCTS to another area. In her EEO investigative affidavit, the supervisor elaborated on her notes, stating Complainant’s confrontation with the manager was about having to work overtime and included Complainant repeatedly shouting “fuck” or “fucking,” that her extra breaks included extensive ones, and she demanded a preferable assignment. The manager wrote a note recounting that based on mail flow dispatch needs, on August 24, 2021, she asked Complainant to go to the LCTS. But Complainant got angry, loudly yelling management kept sending her to different assignments and does not leave her alone, and she wanted to continue working together with the APBS coworker on a different assignment. 2022002093 3 The manager wrote that she asked Complainant to stop yelling because that was not the way to talk to her, and she had talked to her before many times about her outbursts. In her EEO investigative affidavit, the manager stated both she and the supervisor talked to Complainant about her bad behavior, and it was difficult to assign her because she refused to follow instructions. The supervisor stated she decided to terminate Complainant sometime after the 30-day evaluation because her behavior did not improve. She stated the following. Complainant made it difficult to give the 30-day evaluation discussion because she was argumentative, loud, and repeatedly interrupted her, and on the same day afterward loudly and for a long time screamed out on the workroom floor when they were distant to ask a question, and she asked why she was screaming. Then on September 4, 2021, there was a high volume of mail on the holiday weekend, and Complainant was working on the Delivery Bar Code Sequence (DBCS) letter sorting machine. The supervisor stated she assigned more people from other areas, including unassigned regular employees who she kept 5 to 10 late to reduce the dispatch delay. But Complainant walked to the LCTS area and told another worker how to do their work. The supervisor stated she saw Complainant and directed her to back to the DBCS, but even though this was a critical time Complainant argued, saying the other employee needed her assistance, and she had to direct Complainant at least twice before she returned to DBCS. Then on September 6, 2021, while they were distant on the workroom floor, Complainant screamed out for her in a prolonged, loud and shrill voice to ask a question that could have waited. The manager wrote an email to the supervisor that on August 29, 2021, she assigned Complainant to work on a machine, but she declined so she told Complainant she was refusing and would not tolerate it. She wrote Complainant then complied and 10 minutes later said she did not mean to refuse. But she puts up an argument on a regular basis when given instructions. In finding no discrimination, the Agency credited much of the above supervisor and manager’s statements and writings. The instant appeal followed. On appeal, the parties make no comment. ANALYSIS AND FINDINGS 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). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2022002093 4 We find that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant’s employment, as recounted above. Complainant stated that her 30-day rating of unsatisfactory was neither true nor valid because her attendance during her probationary period was excellent in that she never missed a day, she voluntarily worked a lot of overtime, and she was not informed before that her performance did not meet expectations. On attendance, the supervisor agreed Complainant had no absences during the 30-day evaluation period, and stated she rated Complainant unsatisfactory for other reasons. The Agency’s reasons for finding Complainant’s performance unsatisfactory are not contradicted by her voluntarily working overtime. While Complainant may not explicitly have been told her performance did not meet expectations prior to the 30-day evaluation, she was advised more than once to stop her yelling outbursts, and we find it more likely than not that management expressed its displeasure when she reassigned herself. Complainant contended that she was treated less favorably than the APBS coworker, a second coworker (African American/Brown, no prior EEO informal or formal complaints), and a third coworker (Caucasian, no prior EEO informal or formal complaints). Like Complainant, all three coworkers were Mail Processing Clerks who, like Complainant, worked for the supervisor. Like Complainant, the APBS and second coworker had probationary periods from July 31, 2021 to October 28, 2021. The third coworker was no longer a probationary employee by July 31, 2021. Complainant contends that the APBS and second coworker called out of work several times. The second coworker got a termination letter on November 2, 2021, effective immediately, due to his “work performance during probation.” Complainant stated the APBS coworker is still employed. Complainant contended that after the third coworker got her second COVID-19 shot, she got ill, called in, and her absence was excused, but her absence was not excused in the same circumstance. This occurred during Complainant’s prior employment. Complainant is not similarly situated to the third coworker because she was not a probationary employee by July 31, 2021. Also, regarding all three coworkers, Complainant does not contend they behaved like her - resisting work, screaming at management, taking extensive unauthorized breaks, reassigning themselves, and so forth. Complainant failed to prove that the Agency’s reasons for terminating her on September 10, 2021, during her probationary period were pretext to mask discrimination, or otherwise prove discrimination. CONCLUSION The FAD is AFFIRMED. 2022002093 5 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). 2022002093 6 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 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 November 3, 2022 Date