[Redacted], Kathleen P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 27, 2023Appeal No. 2022001385 (E.E.O.C. Mar. 27, 2023) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathleen P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2022001385 Agency No. 1G-772-0017-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s December 8, 2021 final action regarding a formal complaint alleging unlawful employment discrimination in violation of her unlawful employment 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. BACKGROUND During the relevant period, Complainant was employed as a clerk on the Parcel Post Distribution Machine at the Agency’s North Houston, Texas, Processing and Distribution Center (P&DC). On December 19, 2020, Complainant initiated EEO counselor contact. Informal efforts to resolve her concerns were unsuccessful. In April 2021, Complainant filed a formal EEO complaint alleging the Supervisor, Distribution Operations (“Supervisor”), Manager, Distribution Operations (“Manager”), and another manager of Distribution Operations (“MDO2”) subjected her to discriminatory harassment beginning July 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. 2022001385 2 23, 2019, based on sex (female), disability (adjustment anxiety/high blood pressure), and in retaliation for prior protected activity when: 1. During the period 2018-2020, while she was on medical restrictions, she was denied overtime and the opportunity to work a 204B detail. 2. On dates not specified, she was forced to work the floor for her entire shift. 3. During the week of December 23, 2020, her leave was replaced with Absence Without Official Leave (AWOL). 4. On February 26, 2021, she was issued a Notice of Removal dated February 22, 2021. After an investigation into the complaint, 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) dated October 1, 2021. On October 4, 2021, Complainant sent her hearing request to the appropriate EEOC’s hearings unit, but did not serve a copy on the Agency as required. Commission records confirm the hearing request was received by EEOC and docketed as EEOC Hearing No. 460-2022-00076X. However, the EEOC hearings unit did not notify the Agency of the hearing request until February 2022.2 On December 8, 2021, when the Agency did not receive a copy of Complainant’s request for a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision based on the evidence developed during the investigation of the complaint, pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed claims 1 and 2 as discrete acts for untimely EEO Counselor contact, finding that Complainant had not identified any matters withing the 45- day window preceding her initial EEO counselor contact of December 19, 2020. The Agency nevertheless considered the matters raised in claims 1 and 2 in the context of a hostile work environment claims. Regarding claims 3 and 4, the Agency found no discrimination either under a disparate treatment analysis. The Agency also concluded no discrimination or unlawful retaliation was established regarding Complainant’s overall hostile work environment claim. The instant appeal followed. 2 The AJ issued a decision dismissing the hearing request on March 23, 2022, reasoning she did not have jurisdiction over the complaint because the Agency had already issued its final decision due to Complainant’s failure to serve the Agency with a copy of her hearing request. 2022001385 3 ANALYSIS AND FINDINGS Dismissal of Hearing Request As a preliminary matter, Complainant does not dispute that she failed to serve the Agency with a copy of her October 2021 hearing request, resulting in the Agency proceeding with issuing its December 8, 2021 final decision based on the evidence developed during the investigation of the complaint. EEOC regulations state that a “complainant shall send a copy of the request for a hearing to the agency EEO office.” 29 C.F.R. § 1614.108(h). In addition, failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Gallo v. Dep’t of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). Here, the Request for Hearing Form completed by Complainant expressly placed her on notice that failure to provide the Agency with a copy of the hearing request would result in the loss of her right to a hearing, and that the Agency would issue a final decision, as it has done. See Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006). We determine that due to the deficiency in Complainant’s request for a hearing, the Agency’s issuance of a final decision was proper and will now be addressed below. For the same reasons, the EEOC AJ correctly dismissed the hearing request. Claims 1 and 2: EEO Counselor Contact Dismissal as Discrete Acts We will briefly address this issue by finding that the Agency properly found that the matters identified in Claims 1 and 2 do not address alleged discriminatory activities which occurred within 45 days of Complainant’s initial EEO contact in December 2020. We determine that the Agency disposition of these claims was proper pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(2), but will nonetheless address them in the context of a hostile work environment claim as discussed later in this decision. Disparate Treatment: Claims 3 and 4 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. Texas 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). 2022001385 4 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). Supervisor was the responsible management official for Complainant’s leave being recorded as Absence Without Official Leave (AWOL). Supervisor explained that Complainant was approved for Family First Coronavirus Act (FFCRA) leave until December 16, 2020. However, after that period, Complainant continued to be absent from work and never called in or provided any documentation for her absences. As noted above, Supervisor’s determination that Complainant failed to provide documentation for unscheduled absences after approved Covid-19 leave, and her failure to then either call in or show up for work precipitated the decision to issue the notice of removal. The Notice of Removal (NOR) dated February 22, 2021, which was signed by Supervisor, charged Complainant with Failure to Maintain a Regular Schedule/AWOL. In the Notice of Removal indicated that it was issued after Complainant was sent absent various Agency inquiries (on December 27, 2020, January 15 and 27, 2021) instructing her to provide acceptable evidence of her inability to report to duty. Complainant did not provide the evidence and consequently was charged AWOL for her ongoing absences. After careful review of the evidence, we conclude Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons given by management witnesses for the actions disputed in claims 3 and 4 were a pretext masking unlawful discrimination or retaliation. Hostile Work Environment To prove her claim of hostile environment harassment, 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 or reprisal for 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). 2022001385 5 As an initial matter, Complainant’s claims of discriminatory harassment as evidenced by the matters raised in claims 3 and 4, as discussed above, are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex, disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). As to the remaining allegations (1 and 2), nothing in the record reflects that the conduct was either severe or pervasive, or that it was motivated by any discriminatory animus. Regarding claim 1, first we note that during the investigation of her complaint, Complainant stated she did not have any reason to believe that her sex was a factor in the alleged denial of overtime or 204B opportunities. In fact, she pointed to other female employees who she claimed were treated more favorably. Moreover, the Manager averred that Complainant could not be provided with overtime work because one of her medical restrictions during the relevant period was that she could only work a 40-hour week. She further testified that Complainant was assigned to the primary letters processing damaged mail, while sitting all night as a part of the restrictions because she was unable to stand. The Manager averred as a 204B supervisor, an employee was not guaranteed to get off within 8 hours and could not sit all shift. As such, the evidence shows management based its decision concerning Complainant on her medical restrictions. Other limited duty employees who were permitted to work overtime or serve as a 204B appear to have had different medical restrictions than Complainant. Regarding claim 2, the record contains the statement of an Agency official who denies Complainant was ever compelled to work the floor for her entire shift. The official acknowledged that Complainant worked “outgoing [mail]” from 8:30 p.m. to 1:00 a.m. and that if Complainant “worked the consoles” during this time period, at a certain point in her shift, from 2:00 a.m. to 5:00 a.m., Complainant would work the floor. However, there is no evidence that Complainant was treated differently from any other similarly situated employee or was required to work outside her usual job duties. In sum, other than her unsupported assertions, there is no evidence supporting Complainant’s claim that her treatment by management resulted from discriminatory or retaliatory animus. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination or unlawful retaliation on all the subject claims, for the reasons discussed above. 2022001385 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). 2022001385 7 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 March 27, 2023 Date Copy with citationCopy as parenthetical citation