[Redacted], Lauren G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2022000223 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lauren G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022000223 Agency No. 4G-330-0139-21 DECISION On October 7, 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 September 7, 2021, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Miami Beach Main Post Office in Miami Beach, Florida. On March 17, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), religion (Christian/Baptist), color (black), and age (64) when: 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. 2022000223 2 1. On February 10, 2021, a supervisor bullied Complainant about her leave request. 2. On February 11, 20212, she was charged Leave Without Pay (LWOP); and 3. On March 16, 2021, she was issued a Letter of Warning (LOW). On April 7, 2021, the Agency dismissed claim 1 for failure to state a claim. The Agency noted that Complainant’s vague allegation did not qualify as harassing conduct. The Agency accepted claims 2 and 3 for further processing. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). At the outset, we note that in her brief in support of her appeal, Complainant does not contest the dismissal of claim 1. Thus, we decline to address that claim in our decision. Further, we find the record in the present case was adequately developed. Moreover, we note that Complainant does not contest the definition of her complaint. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 2 Originally, Complainant identified March 10, 2021, as the date of this claim. However, in her affidavit, she clarified the date she was charged LWOP was February 11, 2021. 2022000223 3 For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, Complainant alleged that the Manager of Customer Service (MCS) and the Supervisor of Customer Service (SCS) discriminated against her when she was charged LWOP and subsequently issued a LOW. The Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding the charge of LWOP, the record reveals that on February 10, 2021, Complainant submitted two Form 3971s (Request for or Notification of Absence) at 11:39 a.m. for leave the following day in the amount of .52 units of annual leave and 4.0 hours of sick leave. During EEO Counseling, the SCS explained she denied the leave requests as untimely submitted and notified Complainant that there was no coverage for February 11, 2021, in order to approve the leave requests. The SCS noted that as a 33-year employee with the Agency, Complainant knew the importance of requesting leave in a timely manner. The record reveals that on February 11, 2021, Complainant came to work, worked 3.48 hours and left the station without saying anything to the SCS or any other supervisor. The SCS stated Complainant just left the mail on the floor and left the building. The SCS input Complainant’s hours that day to include 4.52 hours of LWOP since the annual and sick leave requests for that day had been denied. In her affidavit, MCS confirmed Complainant’s leave requests were untimely made, but noted Complainant decided to still go to her appointment. The MCS stated when Complainant returned to work, she did not provide documentation to support her absence. MCS noted that despite being initially charged with LWOP, she did a pay adjustment and corrected Complainant’s leave in the system for February 11, 2021. 2022000223 4 The record reveals that on March 16, 2021, Complainant was issued a LOW for Unsatisfactory Performance signed by the SCS. The LOW noted that the two leave requests submitted on February 10, 2021, were immediately denied as the requests were untimely made. The LOW noted that on February 11, 2021, the SCS witnessed Complainant end her tour and “left the remaining of [her] undelivered mail and parcels at [her] route without advising management.” The LOW noted Complainant failed to deliver her route in its entirety, failed to provide a Form 3996 asking for auxiliary assistance for the time she was not going to deliver, and failed to provide a Form 3971 to inform management she was leaving. During an investigative interview, Complainant was asked why she left on February 11, 2021, and failed to provide a Form 3996 and responded, “Because you never asked me.” The LOW found Complainant explanation did not excuse her failure to comply with management’s instructions and the Agency’s policies. The Agency found Complainant made a decision that she did not have the authority to make. As the Agency provided legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to show by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. In her affidavit, when asked, with regard to the claim of LWOP, why her race, color, and religion were factors stated only that Hispanics are treated differently. When asked why her age was a factor, she stated that employees with less experience are on volunteer duty. Regarding her claim about the LOW, when asked why she believed her race was a factor, she replied, “yes.” When asked why her color was a factor, she stated that Hispanics were treated differently. When asked why her religion was a factor, she stated, “her actions.” Complainant provided no response to the question asking why her age was a factor. Upon review, we find Complainant failed to show by a preponderance of evidence that the Agency’s actions were motivated by discriminatory animus. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2022000223 5 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. 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. 2022000223 6 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 December 13, 2022 Date