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

Equal Employment Opportunity Commission

Jul 5, 2022

Appeal No. 2021001411 (E.E.O.C. Jul. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janee S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001411 Agency No. 4B-020-0087-19 DECISION On December 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 31, 2020 final decision 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., 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. BACKGROUND During the period at issue, Complainant worked as a Postal Support Employee (PSE) Sales, Services, and Distribution Associate at the Agency’s Wayland Post Office in Wayland, Massachusetts. On December 6, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her based on sex (female), disability, age (YOB: 1967), and in reprisal for prior protected EEO activity (“Letter About Harassment”) when beginning on or about July 6, 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. 2021001411 2 2019 and ongoing, she was subjected to harassment/a hostile work environment as reflected by the following events: 1. On July and 13, 2019, an Agency manager would discuss his personal life with her, which included discussions of his line of travel/commute; 2. On July 10 and 13, 2019 and August 6, 2019, the manager would question her about her personal life, such as asking where did she exercise, and her line of travel to work; 3. On August 9, 2019, the manager stated “Wow, you are wide-eye bushy tail. Did you work out?;” 4. On July 6, 2019, Complainant overheard the manager discussing her breasts, while laughing with another employee; 5. On September 5, 2019, the manager yelled at her and threw keys toward her face; 6. On July 25, 2019, her co-worker talked about her to other co-workers and management; 7. During her thirty (30) day review, the manager stated she was only entitled to four (4) hours every two (2) weeks; 8. On September 5, 2019, the manager stated she was going to have a sixty (60) day review and it was not going to be good for her and subsequently, she was given an unsatisfactory sixty (60) day review; 9. Beginning in July 2019, her work hours were reduced; 10. On July 16, 2019, the manager followed her into the restroom and accused her of doing drugs; 11. On July 17, 2019, her work hours were changed 5:00 - 1:30 pm to 11:00 am - 5:30 pm; 12. On July 27, 2019, she was sent home early while her co-worker was allowed to stay working on overtime; 13. On July 30, 2019, the manager followed her to the restroom and peeked into the restroom; 2021001411 3 14. On August 6, 2019, the manager stood next to the door and sat at the desk staring at her; 15. As of August 30, 2019, she had not received a uniform shirt or name tag; 16. On September 5, 2019, she was not allowed to be at a window of the Wayland Post Office; 17. On September 5, 2019, she was issued a Letter of Separation for Not Meeting the Requirements of the Job. Following an investigation, Complainant requested a hearing before an Administrative Judge (AJ). However, the AJ dismissed the hearing request for failure to follow her orders, and remanded the matter to the Agency for the issuance of a final decision. On December 31, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS AJ Dismissal of Hearing Request As a threshold matter, we address Complainant’s arguments regarding her requested hearing before an AJ. On August 5, 2020, the AJ emailed her Initial Conference Order, Acknowledgement Order, and Instructions Order to Complainant and the Agency. A telephone conference was scheduled for October 20, 2020. On August 13, 2020, the AJ emailed Complainant and Agency with the complete telephone conference instructions. On October 5, 2020, the Agency filed its Designation of Representative form. However, Complainant failed to file her form. On October 13, 2020, the Agency filed its Statement and Discovery Plan as required by the AJ’s order. Complainant, however, failed to file her Statement or Discovery Plan On October 19, 2020, the day before the hearing, Complainant contacted an EEOC customer service representative trying to find someone that would help her with her case. Complainant claimed she did not have a lawyer and did not feel comfortable proceeding with the Conference. The representative gave Complainant the AJ’s telephone number. Later that day, the AJ received a voice mail from Complainant, who stated that she needed to speak with her before the Initial Conference. The AJ’s intern emailed Complainant reminding her of the AJ’s Postponement Policy. On October 20, 2000, Complainant emailed the AJ requesting a postponement claiming she lacks legal representation, had surgery, and suffers from stress. At that time, Complainant did not communicate with the opposing counsel. 2021001411 4 Further, the AJ informed the parties that she would not rule on the postponement until Complainant coordinated with opposing counsel regarding dates of a rescheduled conference, as required by her Postponement Policy. Accordingly, the AJ denied the postponement request because Complainant had offered no evidence of any sudden or unforeseen emergency that would have justified a postponement, and she had already had one year to seek counsel. The AJ then joined the Conference telephone line that the Agency had set up and the Agency also appeared. Complainant failed to appear. After waiting for fifteen minutes, the AJ received an email from Complainant stating she was waiting for someone to let her know if there will be a conference. The AJ then aside the Agency counsel to resend the August 13, 2010 telephone instructions. The AJ joined the Conference call and the Agency appeared. Complainant did not appear. Thereafter, the Agency called Complainant to explain how to join the call and she appeared. The AJ found that, during the Conference, Complainant was highly argumentative, screaming and talking over the AJ and Agency counsel, and she interrupted repeatedly. Further, Complainant stated that the proceeding was unfair and maintained that she is a victim. The AJ informed Complainant if she wanted to participate in this adjudicative process, she had to follow the AJ’s orders, cooperate with the Agency and read all papers filed. The AJ also placed Complainant on notice that sanctions may be imposed if she continued to violate her Orders. On October 21, 2020, After the AJ issued the discovery plan, On October 21, 2020 Post Conference, she issued the following discovery plan in which the AJ shall be permitted 20 interrogatories, 20 requests for admission, and 20 document requests and indicated that the Agency may depose Complainant. On November 3, 2020, Complainant filed her response to the discovery request However, she failed to respond to any of the 13 Interrogatories. On November 19, 2020, when Complainant failed against to respond to discovery, the Agency requested dismissal of the hearing request. On November 20, 2020, the AJ denied the postponement. On November 25, 2020, the Agency issued an Order of Dismissal, dismissing Complainant’s hearing request. We find no impropriety in the AJ’s decision to dismiss the hearing request, given the circumstances addressed in detail above. We now proceed to the merits of the subject claims. Harassment/Hostile Work Environment To prove her harassment/hostile work environment 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 prior protected EEO activity. 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). 2021001411 5 During the investigation, several management officials articulated legitimate, non- discriminatory reasons of many of the action Complainant proffered in support of her harassment claim. Regarding claims 1 - 4, the Supervisory, Customer Services (male, 56) asserted that he did not discuss his personal life with Complainant to include his line of travel/commute, did not ask Complainant about personal life, including where she worked out and her line of travel to work, and did not discuss Complainant’s breasts while laughing with another employee. Regarding claim 5, the PSE Sales & Services/Distribution (unspecified bases) stated that on September 5, 2019, the manager did not yell at Complainant or throw keys toward her face. She stated that the manager did not raise his voice, but that, instead, Complainant raised her voice at the manager. Regarding claim 6, Complainant claimed that on July 25, 2019, her co-worker talked about her to other co-workers and management Specifically, an employee identified as “The Lottery Man,” purportedly stated that the PSE Sales & Services/Distribution threw Complainant “under the bus” by accusing Complainant of putting registered packages together with other packages. The party responsible for making this comment, however, denied that it was ever made. Regarding claim 7, Complainant claimed that during her thirty (30) day review, the manager stated she was only entitled to four (4) hours every two (2) weeks. The Postmaster (male, YOB: 1968) conducted Complainant’s 30-day review with her. He explained Complainant was only entitled to work 4 hours every 2 weeks based on the contractual obligation by the USPS. Regarding claim 8, Complainant alleged that on September 5, 2019, the manager stated she was going to have a sixty (60) day review and it was not going to be good for her and subsequently, she was given an unsatisfactory sixty (60) day review. The Postmaster was responsible for Complainant’s 60-day review. He noted that the manager mentioned that Complainant had problems working with other employees and did not follow instructions. Furthermore, the Postmaster rated Complainant’s performance as “Unsatisfactory.” Specifically, he noted Complainant cannot work well with other employees, cannot act harmoniously with others, does not cooperate with employees and managers, works in an unsafe manner, does not conduct herself in an appropriate manner for work settings, and questions management actions constantly. The Postmaster asserted that he went above and beyond to give Complainant extra training. Regarding claims 9 and 11, Complainant stated that beginning in July 2019, her work hours were reduced and on July 17, 2019, her work hours were changed 5:00 - 1:30 pm to 11:00 am - 5:30 pm. The Postmaster stated that PSEs were given work hours based on operational needs. He further stated sometimes PSEs are needed in the morning or afternoon. Moreover, the Postmaster stated that management can send PSEs home at any time. 2021001411 6 Regarding claims 10 and 13, Complainant stated that on July 16, 2019 and July 30, 2019, the manager followed her into the restroom and accused her of doing drugs and peeped into the restroom. However, the manager denied doing so. Regarding claim 12, Complainant asserted that on July 27, 2019, she was sent home early while her coworker was allowed to stay working on overtime. The manager explained that Complainant was sent home due to operational needs. Regarding claim 14, Complainant claimed that on August 6, 2019, the manager stood next to the door and sat at the desk staring at her. The manager asserted that he did not stare at Complainant. Regarding claims 15 and 16, Complainant alleged that as of August 30, 2019, she had not received a uniform shirt or name tag and on September 5, 2019, she was not allowed to be at a window of the Wayland Post Office, the Postmaster noted that Complainant passed the exam several days earlier and “these issues must be ordered from private company and take weeks to arrive.” Furthermore, the Postmaster stated that it takes time to order shirts, nametag and set up a cash drawer. Regarding claim 17, Complainant asserted that on September 5, 2019, she was issued a Letter of Separation for Not Meeting the Requirements of the Job. The Postmaster stated that the manager was the deciding official to issue Complainant a Letter of Separation for Not Meeting the Requirements of the Job. Complainant was separated because she did not work well with other employees and did not work safe. Here, the preponderance of the evidence does not establish that S1 and S2 were motivated by retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We note that in various claims discussed above, Complainant alleged various Agency employees took certain discriminatory actions, but those employees denied doing so. Here, where the testimonial evidence is at best equipoise, Complainant has failed to meet her burden. Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, based on the conflicting sworn statements, Complainant failed to prove that she was subjected to discriminatory harassment. 2021001411 7 Disparate Treatment Finally, we acknowledge that the subject claims including discrete actions. 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). In regard to such claims, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions which were not pretextual, as set forth in detail, in the above discussion. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2021001411 8 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. 2021001411 9 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 5, 2022 Date