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

Equal Employment Opportunity Commission

Nov 9, 2022

Appeal No. 2021004105 (E.E.O.C. Nov. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mona P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004105 Hearing No. 541-2016-00190X Agency No. 4E-800-0042-16 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated June 4, 2021, finding no discrimination regarding her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Agency’s North Pecos Station in Denver, Colorado. On April 4, 2016, Complainant filed her complaint alleging discrimination based on sex (female) and disability (anxiety disorder and right knee) when she was subjected to a hostile work environment, including: 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. 2021004105 2 1. On November 17, 2015, December 6, 2015, and December 12, 2015, and date(s) to be specified, she was questioned about unsatisfactory performance regarding missing scans, office and street time. 2. On December 3, 2015, and December 10, 2015, her request for accommodation was denied and she was sent home. 3. On December 22, 2015, after reporting she was assaulted by a coworker (C1), management failed to properly address the matter. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ, after a hearing, issued a decision finding no discrimination. The AJ found Complainant’s supervisor (S1) and manager (M1) to be credible at the hearing. The AJ also found Complainant to be a credible witness at the hearing, but her perceptions of events were colored by her role as a union steward and some unsupported conclusory assumptions. The record indicates that Complainant was on light duty with a modified work assignment as an accommodation for her permanent restriction on her right knee. Complainant indicated that her restrictions included no kneeling and no squatting. Complainant however did not seek any reasonable accommodation related to her depression, anxiety, disorder, and post-traumatic stress disorder. Regarding claim 1, the AJ stated that S1 and M1 credibly testified that as supervisors, they were responsible for engaging in ordinary management of a carrier, i.e., asking Complainant about missed scans and the time she spent on her route. The AJ found that Complainant failed to show that she was harassed as alleged. Regarding claim 2, the AJ stated that M1 credibly testified that Complainant was sent home on December 3 and 10, 2015, because the station did not have work within her medical restrictions, i.e., sedentary work, following her injections in her knee, which occurred once a week for three consecutive weeks about every six months. The AJ found that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. The AJ further found that Complainant failed show that the Agency’s action was discriminatory or harassment as alleged. Regarding claim 3, the AJ stated that on December 22, 2015, a package belonging to another coworker (C2) was misplaced in C1’s (male, hearing impaired) area. Although Complainant offered to take the package to C2, C1 told her twice to leave the package alone. Complainant also told S1 about the package but S1 told her to leave the package alone. S1 believed that C1 handle the package himself. Complainant took the package away from C1 which prompted C1 to try to take the package back. During this struggle over the package, Complainant fell and was bruised. As Complainant and C1 were involved in an altercation, S1 came over and separated Complainant and C1. 2021004105 3 While S1 was consulting M1 about the situation, Complainant called 911 and the police arrived and investigated situation. The police decided not to charge either Complainant or C1 with disturbing the peace and left the station. Complainant then submitted a request for absence asking for administrative leave (from 10:02 to 16:01 on December 22, 2015) and left the station prior to the end of her shift. S1 charged Complainant Absent Without Leave (AWOL) since he did not have authority to grant administrative leave and she did not provide a proper leave form. The AJ noted that Complainant’s AWOL was removed and converted to sick leave via a grievance. The AJ stated that after the police left, S1 took a statement from C1 concerning the incident, but he was unable to obtain the same from Complainant since she left the station. On December 30, 2015, S1 conducted an investigative interview with Complainant regarding the foregoing incident and AWOL. The AJ noted that S1 never completed a written investigation of the incident because he believed Labor Relations was going to do so as he was asked from the Labor Relations about the incident. On January 11, 2016, S1 issued Complainant a Letter of Warning (LOW) for her unacceptable conduct not following his instruction to leave the package alone and AWOL for leaving work without permission, described above. The AJ did not find the Agency’s or S1’s actions, including the LOW, were discriminatory toward Complainant as alleged. Further, the AJ found that Complainant failed to show that she was subjected to harassment as alleged. The AJ issued its final order implementing the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021004105 4 Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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 Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). To establish a claim of harassment, Complainant must establish 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 class; (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 Agency. 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); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, Complainant indicated that she received a modified work assignment as an accommodation for her disability. 2021004105 5 The AJ found that S1 and M1 credibly testified that as supervisors, they were responsible for managing Complainant’s work and asking her about her missed scan, the time she spent on her route, and not doing her work. The AJ also found that M1 credibly testified that on December 3 and 10, 2015, Complainant was sent home because there was no sedentary work within her medical restrictions. Regarding the December 22, 2015 incident, the AJ stated that Complainant and C1 entered into a physical altercation as a result of her failure to follow S1’s specific instruction to leave a misplaced package alone with C1. The AJ found no discrimination or harassment for the Agency or S1’s actions, including Complainant’s LOW for not following S1’s instruction and AWOL. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. We find that Complainant failed to show she was denied a reasonable accommodation. Regarding Complainant’s claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s decision is supported by substantial evidence. 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. 2021004105 6 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. The court has the sole discretion to grant or deny these types of requests. 2021004105 7 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, Director Office of Federal Operations November 9, 2022 Date