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

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2020004279 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Regena L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004279 Hearing No. 460-2020-00076X Agency No. 4G-700-0045-19 DECISION On July 21, 2020, 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 June 16, 2020, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to the first two claims of this complaint, Complainant worked as a City Carrier Assistant at the Agency’s Old Hammond Station facility in Baton Rouge, Louisiana. In January 2019, Complainant was transferred to the Agency’s Southeast Station in Baton Rouge, and there, effective March 2, 2019, Complainant became a City Carrier. Report of Investigation (ROI) at 162-63, 170. 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. 2020004279 2 Complainant averred that, on December 28, 2018, she was casing mail when the Old Hammond Manager approached her to discuss a customer complaint. According to Complainant, she was eating a cookie when the Old Hammond Manager asked her a question. Complainant alleged that, when she answered his question with the cookie in her mouth, the Old Hammond Manager “asked what was in my mouth and if I was sucking on balls.” ROI at 62. Complainant stated that she responded that he should get away from her “with that disrespectful shit. I don’t tolerate that and that’s how people get slapped.” Id. According to Complainant, she heard the Old Hammond Manager say as he walked away that he would “bat her ass down.” Id. Complainant stated that she told the Old Hammond Manager to “come and do it,” and that although she was a woman, she would “walk your ass down.” Id. According to Complainant, a few minutes later, the Old Hammond Supervisor instructed her to go home. Complainant stated that the Old Hammond Supervisor put her on emergency placement in an off-duty status without pay but did not provide a reason for sending her home. Complainant alleged that, on previous occasions, the Old Hammond Manager had pointed to his private area while talking to Complainant. According to Complainant, she did not remember specific dates, but she stated that the Old Hammond Manager typically would do so when there were no other people around. According to Complainant, she reported the Old Hammond Manager pointing to his private area to an Acting Supervisor, who did not address the situation. The Acting Supervisor denied that Complainant told him that the Station Manager pointed to his private area while talking to her. ROI at 59-69, 106. The Old Hammond Manager denied pointing at his private area while speaking to Complainant. According to the Old Hammond Manager, on December 28, 2018, he could not understand Complainant’s answer to a question, so he asked her if she had cotton in her mouth. The Old Hammond Manager stated that Complainant started cursing at him, threatened to slap him, and announced that she would find out where he lived. ROI at 94-95. The Old Hammond Supervisor stated that she did not witness the December 28, 2018, incident. According to the Old Hammond Supervisor, when she asked Complainant what happened approximately five minutes later, Complainant said that the Old Hammond Manager said, “I can’t hear you. What, do you have cotton balls in your mouth.” ROI at 100. The Old Hammond Supervisor averred that Complainant then stormed into the Old Hammond Manager’s office and threatened to follow him to his house to hurt him and “beat his ass like a man.” ROI at 101. According to the Old Hammond Supervisor, she told Complainant that she would be walked out and sent home for the rest of the day because of her threatening behavior. ROI at 100-02. The Acting Baton Rouge Manager, Customer Service Operations (CSOM) stated that she heard that Complainant and the Old Hammond Manager got into a verbal altercation. The CSOM averred that she wanted to separate Complainant and the Old Hammond Manager while the incident was investigated, so she moved Complainant to the Southeast Station. The record contains a memorandum regarding a fact-finding investigation into the December 28, 2018, incident. ROI at 111-12, 191-99. 2020004279 3 Complainant averred that she was diagnosed with congestive heart failure in August 2018. Complainant stated that she became pregnant in October 2018 and that she delivered her baby on July 11, 2019. According to Complainant, towards the end of her pregnancy, she had the following restrictions because of congestive heart failure and pregnancy complications: limited number of hours she could work, limited walking, limited climbing stairs, and no extreme temperatures. Complainant averred that, on June 4, 2019, she asked the Southeast Supervisor if she could work inside until she gave birth, but she stated that she was told she could not work indoors. Complainant alleged that she was sent home on June 20, 2019, and told not to return until there was work available for her. ROI at 78-87. The Southeast Manager stated that Complainant told him that she could not perform all of the duties of her City Carrier job and that she was provided with two and half hours of assistance per day. The Southeast Manager and the Southeast Supervisor both stated that Complainant indicated that she had a medical condition and medical restrictions but did not provide any medical documentation. The Southeast Supervisor denied that Complainant requested to work indoors until the end of her pregnancy. The record contains two letters to Complainant from the Customer Service Support/Complement Coordinator dated March 13, 2019, and March 27, 2019, requesting medical documentation to substantiate the medical restrictions she had verbally reported to management, in order to determine whether Complainant could perform the duties of her bid. The CSOM stated that Complainant contacted her and requested more work hours within her restrictions but never provided medical documentation of her restrictions. ROI at 112, 115- 21, 126-33, 137-38, 141-42. On April 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis sex (female) when: 1. On or about December 28, 2018, the Old Hammond Manager made sexual comments toward Complainant, and, on unspecified dates, the Old Hammond Manager pointed at his private area while speaking to Complainant, which she believes constituted sexual harassment; and 2. On December 28, 2018, Complainant was placed on emergency placement in an off-duty status without pay. On July 7, 2019, Complainant amended her complaint, alleging that the Agency discriminated against her on the bases of race (Black), national origin (unspecified), sex (female, pregnancy), and disability (pregnancy complications and congestive heart failure) when: 3. Since June 24, 2019, and continuing, Complainant was denied reasonable accommodation when she was not provided work within her restrictions and was sent home. 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). 2020004279 4 Complainant requested a hearing, but the AJ dismissed the hearing request as untimely filed.2 The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that she was sexually harassed and that she never received an explanation of why she was put on emergency placement.3 Complainant requests that the Agency’s final decision be reversed. In response to Complainant’s appeal, the Agency contends that its final decision should be affirmed. 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 (EEO MD-110), at Chap/ 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”). Sexual Harassment Complainant alleged that she was subjected to sexual harassment by the Old Hammond Manager. In order to establish a prima facie case of sexual harassment, a complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the 2 Complainant does not challenge the dismissal of her hearing request on appeal. The Commission exercises its discretion to address only those issues specifically raised on appeal and declines to address this procedural dismissal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 9, § IV.A (Aug. 5, 2015). 3 Complainant also appears to raise reprisal for protected activity as a basis for being put on emergency placement for the first time on appeal. We note that, absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000). Complainant has not provided justification for raising reprisal as a basis for the first time on appeal, and we decline to consider reprisal as a basis for this claim. 2020004279 5 employer. See Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982). 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 (Mar. 8, 1994). Complainant alleged that, on December 28, 2016, the Old Hammond Manager asked if she was “sucking on balls.” However, the Old Hammond Manager stated that he asked Complainant if she had cotton in her mouth because he could not understand what she was saying. The Old Hammond Supervisor stated that, although she did not witness the interaction between Complainant and the Old Hammond Manager, Complainant stated to the Old Hammond Supervisor, approximately five minutes afterwards, that he had asked if she had cotton balls in her mouth. Moreover, Complainant stated that she had a cookie in her mouth while she was answering the Old Hammond Manager’s question, which lends credence to the Old Hammond Manager’s statement that he asked what was in her mouth because he could not understand her. Accordingly, we find that Complainant has not established by preponderant evidence that this harassment occurred as alleged or that it was based on sex. Complainant generally alleged that the Old Hammond Manager would occasionally point towards his private area while talking to Complainant, which the Old Hammond Manager denied. Complainant indicated that she reported the Old Hammond Manager’s gestures to the Acting Supervisor, but he denied that Complainant reported any such harassment. Complainant was unable to provide any dates or other details to substantiate her claim against the Old Hammond Manager. Therefore, we find that Complainant has not established that she was subjected to sexual harassment. Disparate Treatment Complainant also alleged that she was subjected to discrimination when she was placed on emergency placement in an off-duty status without pay. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Aff., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). 2020004279 6 The Agency has provided a legitimate, nondiscriminatory reason for sending Complainant home on December 28, 2018, which was that she threatened the Old Hammond Manager. As evidence of pretext, Complainant argues that she was never given a reason for being sent home. However, Complainant stated in her affidavit that she told the Old Hammond Manager “that’s how people get slapped” and “I’ll walk your ass down.” ROI at 62. This was consistent with Complainant’s statement during the fact-finding investigation that she told the Old Hammond Manager to “get out of her fucking face because she doesn’t tolerate the disrespectful shit because that is how a person gets slapped” and that she “would walk his ass down.” ROI at 194-95. Complainant has offered no other evidence that the Agency’s proffered legitimate, nondiscriminatory reason was a pretext for sex discrimination. Denial of Accommodation for Pregnancy and Denial of Reasonable Accommodation Complainant alleged that the Agency failed to accommodate her medical restrictions as a result of pregnancy-related complications and congestive heart failure. It is unlawful for an employer to “discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e-2(a)(1). “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” § 2000e(k). “Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work....” Id. A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that (1) she belongs to the protected class; (2) she sought accommodation; (3) the agency did not accommodate her; and (4) that the agency did accommodate others “similar in their ability or inability to work.” Young v. U. Parcel Serv., 575 U.S. ___, 135 S. Ct. 1338, 1354 (2015). “A pregnant employee may be entitled to reasonable accommodation . . . for limitations resulting from pregnancy-related conditions that constitute a disability or for limitations resulting from the interaction of the pregnancy with an underlying impairment.” See EEOC Compl. Man. (BNA), Vol. 2, Sec. 626, Enforcement Guidance: Pregnancy Discrimination and Related Issues, No. 915.003, at EEOM 626:20 (June 25, 2015). In order to establish that Complainant was denied a reasonable accommodation for her disability, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). When an employee's disability or need for an accommodation is not known or obvious, an employer may ask an employee for reasonable documentation about his or her disability, limitations, and accommodation requirements. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, Quest. 7 (July 27, 2000). 2020004279 7 We find that Complainant has not established by the preponderance of the evidence that she was denied an accommodation for pregnancy or a reasonable accommodation for her disability. According to the record, the Agency repeatedly requested documentation regarding Complainant’s asserted medical restrictions as early as in March 2019. The Southeast Supervisor, the Southeast Manager, and the CSOM all stated that Complainant was accommodated with two and a half hours of help on her route even though Complainant did not provide any medical documentation. Complainant stated that, in June 2019, she asked the Southeast Supervisor if she could work indoors, but he denied that Complainant asked for indoor work or other accommodations. There is no other evidence in the record supporting Complainant’s allegation that she requested accommodation for her medical restrictions in June 2019. Accordingly, we find that Complainant has not established a prima facie case of denial of pregnancy-related accommodation or a prima facie case of denial of reasonable accommodation for disability. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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 2020004279 8 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. 2020004279 9 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 February 7, 2022 Date