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

Equal Employment Opportunity Commission

Dec 7, 2022

Appeal No. 2021003976 (E.E.O.C. Dec. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Meaghan F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003976 Hearing No. 430-2020-00361X Agency No. 1K-291-0036-19 DECISION On July 4, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 29, 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. BACKGROUND Complainant worked as a Lead Male Processing Clerk, 07/CC, at the Agency’s Processing and Distribution Center in Greenville, South Carolina. On July 2, 2019, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), age (55), and in reprisal for prior protected EEO activity when: 1. Since June 21, 2019, the Distribution Operations Manager (Manager) denied Complainant training opportunities; 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. 2021003976 2 2. Since April 26, 2019, the Manager belittled Complainant; 3. Between April and June of 2019, the Manager failed to give Complainant a copy of her job description; 4. Between April and June of 2019, the Manager did not give Complainant the computer systems access she needed to do her job; 5. Since April 13, 2019, the Manager did not permit Complainant to work in the job she bid on; 6. On June 3 and June 4, 2019, the Manager told Complainant to provide medical documentation and threatened to send her home until she provided such information; 7. Between May and August 2019, the Manager did not support Complainant when she tried to instruct other employees; 8. On August 22, the Manager issued Complainant a letter of warning; 9. On August 2, 2019, the Manager ordered Complainant to show proof that she had completed a training class in cybersecurity; 10. Between June and August of 2019, the Manager denied Complainant overtime; and 11. On August 7, 2019, the Manager denied Complainant’s request for annual leave for August 31 and September 1, 2019. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On June 16, 2021, the AJ granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal. On June 29, 2021, the Agency issued a final order in which it fully implemented the AJ’s decision. This appeal followed. As to allegation (1), Complainant claimed that she had requested training on all of the duties of the Lead Clerk position, but that the Manager denied her request supposedly due to time constraints. IR 188. The Manager averred that Complainant was given the same training that was given to all other Lead Clerks. IR 341-44. A grievance settlement form dated June 18, 2019, indicated that since there was no formal training for lead clerks in the operation, Complainant would be allowed to shadow a Lead Clerk for one day. IR 403. Regarding allegation (2), Complainant averred that the Manager allowed non-career employees to overrule the decisions she made as Lead Clerk. 2021003976 3 She also averred that the Manager berated her and talked down to her as if she were a child. IR 190-92. The Manager responded that when she tried to inquire about unfinished tasks such as replacing placards, Complainant would become argumentative and belligerent. IR 345-46. Concerning allegation (3), Complainant maintained that the Manager had never given her an official copy of her job description despite numerous requests. IR 193-94. The Manager responded, that when an employee bids on a job, the description is posted with the phrase, “other duties as assigned by the supervisor.” The Manager also averred that on June 4, 2019, she did provide Complainant with a copy of her job description as a Lead Clerk. IR 347-49. With respect to allegation (4), Complainant alleged that on April 13 and 30, May 1 and 31, and June 1 and 30, 2019, the manager denied her access to the computer system and that three of her coworkers were given such access. IF 196-97. The Manager responded that the reason she could not access the system was because she had not been formally released from her former facility in Michigan, and that once the release had occurred, she gained the necessary system. IR 350-53, 404-05. With regard to allegation (5), Complainant claimed that although she was nominally the Team Lead, the Manager never let her perform the functions of that job. She averred that instead, she worked as a Clerk and was given Mail Handler duties that she did not want. IR 198, 227-29, 233, 314. The Manager stated that Complainant only worked her bid job, unless she had to work in another section on overtime. IR 354. As to allegation (6), Complainant alleged that the Manager ordered her to provide medical documentation to support her request for leave under the Family and Medical Leave Act (FMLA) and to determine whether she was fit for duty. IR 200-01, 419-21, 506-08. The Manager affirmed that she instructed Complainant to provide medical documentation after Complainant informed her that she could not push or pull more than 20 pounds, and that Complainant refused to do so. IR 358-62, 422-28, 517. An investigation had been initiated in order to determine whether Complainant should have been disciplined for improper conduct and insubordination in connection with her refusal to provide the requested medical information. IR 300-05. A memorandum dated June 7, 2019, indicated that Complainant’s request for light duty had been approved. IR 514-16. Regarding allegation (7), Complainant claimed that on April 26, May 11 and 26, July 31, and August 4, 2019, she was subjected to hostile behavior by subordinate employees when she tried to instruct them in her capacity as Lead Clerk. She also alleged that neither the Manager nor any other management official gave her the support she needed to carry out her duties as Lead Clerk. IR 202-03. The Manager responded that she had spoken with a union steward about the alleged confrontations and was informed that one of the employees was not cursing at Complainant. Another employee reported that Complainant was yelling in a way that the employee found threatening. IR 363-65. Concerning allegation (8), in a letter of warning issued to Complainant on August 21, 2019, the Manager charged Complainant with improper conduct. 2021003976 4 She stated that on July 24, 2019, during the course of a discussion, Complainant had been argumentative and belligerent, continually interrupting the Manager and calling the Manager a liar. IR 209-10. 365-69, 434-40, 443. Two months later, on October 7, 2019, the parties settled the matter through the grievance process. The terms of the resolution indicated that the letter of warning would be removed from Complainant’s official personnel folder one year from the date of issuance provided that there was no further disciplinary action taken against her. IR 442. With respect to allegation (9), Complainant claimed that the Manager instructed her via email to show proof that she had taken and passed a training course on cybersecurity. IR 213-15. The Manager averred that she wanted to make sure that Complainant completed the cybersecurity training course so that she would not lose access to the system and not be able to do her job. IR 369. With regard to allegation (10), Complainant alleged that she was denied overtime on June 15 and 22, July 2, July 8 through 31, August 5 through 31, and September 3, 2019 with no reason being given for the denial. IR 218-19. However, time and attendance records for the period in question show that during the time frame encompassed by the above-listed dates, Complainant worked 53.62 hours of overtime. The Manager asserted that to the extent Complaint was not given overtime, it was due to declining mail volumes during the summer months. IR 371-74. As to allegation (11), Complainant claimed that on August 7, 2019, the Manager denied her request for annual leave to be taken on August 31 and September 1, 2019. IR 221, 260. According to the Manager, Complainant was denied leave because the maximum number of employees who could be off on the two days in question were off, and consequently, Complainant was needed at the facility on those days. The term “max off” was noted on the leave slip as the reason for disapproval. IR 375-77, 466-67. In her appeal brief, Complainant repeats the contention that she raised in her complaint, namely that that the Manager created and maintained a hostile work environment. In support of her appeal brief, she included many notarized statements from her coworkers. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant provided additional evidence and statements from various co-workers. However, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. As such, we will not consider this new evidence on appeal. 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. 2021003976 5 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 official named in the complaint, in this case, the Manager, was motivated by unlawful considerations of her sex, age, or previous EEO activity in connection with any of the incidents cited in support of her claim. To raise a genuine issue of material fact as to whether she was subjected to discriminatory harassment, Complainant would have to present enough evidence from which a fact-finder could reasonably infer that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected classes; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes that the Commission enforces are not civility codes, however. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant must therefore present enough evidence from which it can be inferred 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 show that the conduct of was motivated by unlawful considerations of her sex, age, or prior EEO activity. Indicators of discriminatory motive include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Only if Complainant raises a genuine issue of material fact as to both of those elements, hostility, and motive, can the question of Agency liability for discriminatory harassment present itself for a hearing. 2021003976 6 When asked by the EEO investigator why she believed that her sex, age, and previous EEO activity were factors in the above-described incidents, Complainant averred that younger male Clerks, many of whom were non-career employees, were treated more favorably by the Manager than she was. IR 188-89, 193-96, 198-99, 201, 203-04, 210, 214, 219, 222; 523-39. The Manager denied Complainant’s accusations of discrimination. She averred that on numerous occasions, Complainant behaved very belligerently towards her when she tried to give Complainant instructions, and that she acted that way toward her coworkers. IR 495-99. A Mail Processing Clerk averred that Complainant, and the Manager could not communicate properly, and that Complainant did not completely understand her duties. IR 494. A male Postal Support Employee averred that the Manager came across as brash to every employee because she took her management job seriously and wanted her subordinates to perform, and that Complainant would not listen to the instructions she was given. IR 504-05. A female Processing Clerk averred that it was Complainant who was creating the hostile work environment by making her coworkers feel threatened and yelling at her supervisor. IR 509-10. Upon careful review of the evidentiary record in its entirety, including the investigative report and Complainant’s contentions on appeal, we find that the evidentiary disputes regarding the Manager’s motivations in connection with the above-listed incidents are not sufficient to raise a genuine issue of material fact that would warrant a hearing. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor with respect to the allegations she raised in her complaint. Ultimately, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION 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. 2021003976 7 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). 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. 2021003976 8 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). 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: Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 7, 2022 Date