[Redacted], Tabetha M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jan 19, 2022

Appeal No. 2021001067 (E.E.O.C. Jan. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tabetha M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001067 Agency No. 1F-901-0054-20 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 13, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to her complaint, Complainant was employed as a full-time Supervisor of Maintenance Operations (SMO) at the Los Angeles Processing and Distribution Center in Los Angeles, California. She filed an EEO complaint alleging that she was subjected to discrimination and a hostile work environment based on her sex (female) and in reprisal for engaging in prior EEO activity when, beginning on February 20, 2020 and continuing, the following occurred: 1) S1, Supervisor of Maintenance Operations, created a hostile work environment when he instructed her employees to file grievances stating that Complainant was harassing them. Once Complainant brought this to management’s attention no action was taken; 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. 2021001067 2 2) Her request(s) to be on panels for hiring or promotions were not granted (only based on retaliation); and 3) She was involuntarily moved from her position in Automation and assigned into the Custodial Unit. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge. According to the Agency, Complainant did not make a request therefore it 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 and harassment as alleged. This appeal followed. Regarding claim 1, Complainant noted that a coworker, C1, overheard S1 inform a group of custodians to write statements regarding Complainant and to put them in the Plant Manager’s Inbox. Complainant felt that this was in reprisal for her EEO activity and that he was targeting her. She raised her concerns with S2, the Acting Manager of Maintenance, and S3, Manager of Maintenance Operations, but they took no actions. Complainant felt that S1 should have been disciplined for undermining her authority. C1 stated that she did not remember the exact date, but she overheard S1 instructing an employee that if he had a complaint, he could file a grievance against Complainant. C1 indicated that she did not know what the employee’s complaint was about. S1 stated that this incident never occurred, and he did not coerce employees on what to say. Specifically, he maintained that he was in a training class, starting February 17, 2020, and lasting three weeks in Oklahoma, when this incident allegedly took place. S1 stated, however, that on or about February 13, 2020, some employees complained to him that they felt Complainant was harassing them. He indicated that, in the past, he has witnessed Complainant behave inappropriately towards employees, including yelling at them. S1 stated that he told Complainant that he objected to this behavior. After the employees complained to him, he informed the employees that they should report Complainant’s behavior, including to their unions, but he never coerced them to do this, or even suggested how they might go about reporting their concerns. The record contains handwritten statements from E1, an employee who alleged Complainant harassed her, and E2 who witnessed this incident. Both indicated that S1 stopped Complainant from yelling at E1, and eventually told her to go to her office. Regarding claim 2, Complainant stated that A1, Maintenance Engineering Specialist, was the management official responsible for denying her requests for information on how to be put on the hiring and promotion panels on March 15, 2020 through March 23, 2020, and for “sabotaging” the class schedules in order to exclude her from attending training for the panels on 2021001067 3 May 13, 2020 and June 4, 2020. Complainant maintained that by being denied training, her upward mobility was affected. According to Complainant, A1’s actions were in retaliation for Complainant filing EEO complaints against A1’s husband, who was a high-ranking manager at the Los Angeles Processing and Distribution Center. A1 stated that it was not her function to train anyone to be on a panel. A1 also emphasized that she was not in Complainant’s line of authority and does not schedule her training. The record indicates that Complainant sent A1 an email on March 23, 2020, with the subject line “New Hire Panel Procedure - 2nd Request,” requesting to be on any future panels. On March 24, 2020, by email, A1 replied to Complainant stating that she would add her to the list based on the need. A1 noted that she looked through her previous emails but did not find a prior email regarding the hiring panel. Regarding claim 3, Complainant stated that S2 was the management official responsible for involuntarily moving her to the Custodial unit in November of 2019. She stated that she was not provided a reason for the reassignment. S2 stated that as the acting Manager of Tour 3 during the peak season, he made reassignments that he felt were necessary for the unit to run efficiently and to keep all the processing equipment running at optimal performance. He stated that the reassignments were made to give management more flexibility in scheduling the supervisors where they were needed. He stated that he explained to Complainant that moving her to the Custodial Unit would benefit her and the Agency because she would gain experience working in a very important unit. Although Complainant was apprehensive when it was first discussed, S2 stated that she agreed to accept the challenge. On appeal, Complainant’s non-attorney representative maintained that the Agency’s final decision should be rescinded because neither he nor Complainant received the investigative file or notification of the right to a hearing. The Agency, in response, acknowledged that the representative’s mailing was designated “returned to sender,” and returned; however, Complainant received her copy of the investigation and notification of her right to a hearing at her address of record on August 14, 2020. Because Complainant’s representative is not an attorney, the Agency argued that the 30-day time frame for Complainant to request a hearing began upon her receipt of the investigative file and the notification pursuant to 29 C.F.R. §1614.402(b). We find that the record contains documentation supporting the Agency’s assertion that Complainant received the investigative report and notification on August 14, 2020.2 Accordingly, we decline Complainant’s representative’s request that the Agency’s final decision be rescinded. 2 The record contains a copy of the August 14, 2020, delivery documents bearing Complainant’s signature. 2021001067 4 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”). To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and reprisal for her prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for each of its actions set forth in claims (1) - (3). We find no persuasive evidence of pretext. With respect to claim 1, we do find that Complainant established that S1 informed employees, who felt they were being harassed by Complainant, that they have the right to complain about her behavior. With respect to claim 2, there is no dispute that A1 told Complainant that she would add her name to the list of people to serve on panels as needed. Complainant, however, did not provide any persuasive evidence that there was a need for her, that there were training sessions established for the purpose of training employees to serve on hiring panels, or that A1 played any role in specifically denying her the opportunity to receive such training. Finally, Complainant, other than mere speculation, offered no evidence that her sex or prior EEO activity played any role in her reassignment set forth in claim 3. 2021001067 5 Employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Furthermore, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), we find that Complainant’s claim of a hostile work environment must also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the Agency’s actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). CONCLUSION 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. 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. 2021001067 6 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. 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 19, 2022 Date