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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000353 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lisa S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000353 Hearing No. 460-2021-00058X Agency No. 4G-700-0124-20 DECISION On October 20, 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 21, 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 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, PS-7, at the Agency’s Southfield Station Post Office in Shreveport, Louisiana. On May 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African- American), sex (female), religion (Baptist), age (YOB: 1970), and in reprisal for prior protected EEO activity 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. 2022000353 2 1. Beginning January 1, 2020, and continuing, Complainant was not allowed to report at 6:00 a.m. for overtime and was told it was mandatory for her to work on Sunday to stay on the overtime list; 2. On numerous occasions, Complaint’s supervisor cursed at her, jumped from his desk and waved his hands and arms at her; and 3. On June 25, 2020, and other dates, Complainant was assigned overtime out of sequence or was given longer overtime assignments compared to her male coworkers. Complainant previously reported early to sort and distribute mail, which were duties of the Clerk position. The Southfield Station only had one Postal Support Employee Clerk, and Carriers were used to help perform these clerk duties. Complainant stated the Southfield Station Supervisor, Customer Services (Supervisor 1) informed Complainant that she was not allowed to report at 6:00 a.m. for overtime because two additional Clerks were brought to work in the Southfield station. Complainant then started to report at 7:00 a.m. However, there was one zone, zone 71105, where management still had to use Carriers to process the mail. Supervisor 1 explained that a couple of Carriers were still used to work the mail for zip code 71105. The Customer Services Manager (Manager) stated she, Supervisor 1, and another Supervisor (Supervisor 2) were involved in the decision to stop allowing Complainant to report at 6:00 a.m. for overtime. Manager explained Complainant did not have the sorting scheme knowledge for zones 71105 and 71115, and that Complainant worked in zone 71104, where there was less mail volume in comparison to the other two zones. Complainant was on the overtime desired list. Supervisor 1 informed Complainant and the rest of the overtime desired list that due to the amount of Amazon mail, it was mandatory for them to work on Sundays to deliver for Amazon if they wanted to stay on the overtime desired list. On March 12 and April 29, 2020, Supervisor 2 was conducting investigative interviews with other employees where Complainant was present as the union representative of the employees. Complainant alleged that Supervisor 2 cursed at her, jumped from his desk, and waved his hands at her. At the interview on April 29, 2020, the employee she represented refused to answer questions. Complainant claimed that Supervisor 2 became hostile and when Complainant spoke, Supervisor 2 would cut her off. The Manager, who was also present, informed Supervisor 2 that Complainant was allowed to talk during the investigative interview. Supervisor 2 then stood up, began to gesticulate, and said he was not going to allow Complainant to say things about him that were not true. Complainant alleged Supervisor 2 slammed his fists on the desk when he jumped up from the desk. Complainant alleged that on June 25, 2020, and June 29, 2020, she was assigned overtime out of sequence or was given longer daily overtime assignments than her male coworkers. On June 25, 2020, Complainant requested two hours of leave and did not work overtime, and on June 29, 2020, Complainant worked two hours of overtime. 2022000353 3 Complainant alleged that because she left early on June 25, 2020, Supervisor 1 came to her the next day (June 26, 2020) and informed her that because she did not get her overtime the day before, he was going to give it to her that day. Complainant informed Supervisor 1 that her overtime opportunity was gone and that he was not going to give her the larger throw off than her coworker who was only given a 30-minute throw off. Supervisor 1 stated he usually assigned overtime first to the 12-hour Overtime Desired List employees and by proximity to their location, then to the City Carrier Assistant Employees. He explained that he tried to give overtime fairly; however, it was a quarterly equitable standard rather than minute by minute. Splitting the routes did not always come out fair, which is why overtime varied depending on the day. 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). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. 2022000353 4 The Commission finds that the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Further, Complainant failed to establish by a preponderance of the evidence that the Agency’s actions were based on discriminatory or retaliatory animus as more fully explained above. The record reflects that the alleged incidents was more likely the result of routine supervision and general workplace disputes and tribulations. Regarding claim (1), management officials explained that they hired two additional Clerks with the intention to discontinue using Carriers performing Clerk duties. Complainant did not have sufficient knowledge of the routes and sorting scheme of the zone where there was still a need for Carriers to perform Clerk duties. Thus, Complainant was not given early overtime. Additionally, Complainant was given mandatory overtime because she was on the overtime desired list and the Station needed all volunteers to work on Sunday due to demand. With respect to claim (2), the record demonstrates that Supervisor 2 acted unprofessionally; however, there is no evidence that his actions were based on discriminatory or retaliatory animus. As to claim (3), management made every effort during the quarter to distribute overtime opportunities equally among those on the overtime desired list. Management officials noted that Complainant did not receive more overtime than her co-workers as alleged on the days in question. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Based on a thorough review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, including those not specifically addressed herein, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2022000353 5 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. 2022000353 6 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 January 26, 2023 Date