[Redacted], Tasia C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 18, 2022

Appeal No. 2021001165 (E.E.O.C. Jan. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tasia C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001165 Agency No. 4B-060-0025-20 DECISION On December 6, 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 November 9, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant 1 at the Agency’s Ridgefield Post Office in Ridgefield, Connecticut. On March 16, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when: 1. On November 13, 2019, she was given an investigative interview; 2. On December 1, 2019, the Postmaster yelled at her and made inappropriate comments; 3. On December 1, 2019, she was given instructions to clock out and go home; 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. 2021001165 2 4. On December 2, 2019, she was given an investigative interview; 5. Beginning on December 2, 2019 and ongoing, she was taken off the work schedule and her work hours were reduced. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its November 9, 2020, final decision (FAD), the Agency found that the incidents in claims 1 and 4 did not result in any concrete agency action and that Complainant did not establish that she was aggrieved. The Agency further found that the evidence did not establish that the incident in claim 2 occurred as alleged as the Postmaster denied the incident and there was no evidence to support the allegation. With regard to claims 3 and 5, the Agency concluded that, even assuming arguendo, that Complainant established a prima facie case of disparate treatment, it had offered legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that the reasons were pretextual. The Agency also determined that all the claims considered together were not sufficiently severe or pervasive to rise to the level of a hostile work environment. The Agency therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant seeks to have the Agency’s FAD reversed. The Agency did not present any arguments on appeal. 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021001165 3 For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). If the Agency meets its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). With respect to claim 1, we find that Complainant did not establish a prima facie case. Complainant acknowledged that she was not disciplined following the November 13, 2019 interview. See Report of Investigation (ROI) at 61. Absent an adverse employment action, Complainant did not establish a prima facie case. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sept. 7, 2007). With respect to the remaining claims, assuming arguendo that Complainant established a prima facie case, we find that the Agency provided a legitimate, nondiscriminatory reason for the incidents. In claim 3, Complainant alleged that on December 1, 2019, she was told to clock out and go home. Complainant further alleged, in claims 4 and 5, that after the December 2, 2019, investigative interview, she was taken off the work schedule, placed in a non-pay status, and her work hours were reduced. ROI at 65-66. The Postmaster explained that he told Complainant to clock out after she repeatedly refused to follow instructions and then threatened to call a meeting with the union steward. See ROI at 86. With respect to claims 4 and 5, he stated that Complainant was interviewed because she failed to complete the previous day’s assignment and management has a responsibility to address issues directly related to performance. See ROI at 88-89. He asserted that Complainant was not disciplined following the December 2, 2019, interview but that she was taken off the work schedule in response to Complainant’s written statement that she felt unsafe to work given the inclement weather and that in addition, city carrier assistants are not on a set schedule. ROI at 91-93, 110-13. Complainant’s Supervisor corroborated the Postmaster’s explanation that Complainant was taken off the work schedule and her hours reduced because she had said she did not feel safe driving on icy roads. See ROI at 122-24. We conclude that the Agency met its burden to proffer a legitimate, nondiscriminatory reason for its actions. We further find that Complainant failed to establish that the Agency’s legitimate, nondiscriminatory reasons for its actions were a pretext. Complainant asserted that she was treated differently than similarly situated male employees, and that the Postmaster “did not like when a woman disobeyed him.” ROI at 63, 66. 2021001165 4 The evidence in the record does not support Complainant’s statement that she was treated differently than male coworkers in similar circumstances. Rather, the evidence indicates that male employees were also subject to being disciplined if they did not complete their assignments. See ROI at 84, 90, 119, 123. Complainant did not provide any other evidence which could lead to an inference that the Agency’s reasons were pretextual. Absent more, we cannot conclude that the actions were a cover for discriminatory animus. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore affirm the Agency’s determination that Complainant did not establish she was subjected to disparate treatment on the basis of sex. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). As noted above regarding claims 1, 3, 4, and 5, Complainant did not establish that she was subjected to disparate treatment because of her sex. We conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). In claim 2, Complainant alleged that on December 1, 2019, the Postmaster yelled at her and called her a “nobody”. ROI at 62-63. The Postmaster stated that after Complainant refused to go out to finish her assigned work, he told her that she did not have the authority to refuse a direct order and she was required to follow her supervisor’s instructions. See ROI at 85. We find that the incidents alleged are not sufficiently severe or pervasive to create a hostile work environment. The record indicates that the incidents Complainant characterizes as evidence of harassment involve routine work assignments, instructions, and admonishments, which are neither severe nor pervasive enough to alter a term or condition of employment. See Eckenrode v. U.S. Postal Serv., EEOC Appeal No. 0120113930 (Nov. 6, 2012); Quinones v. Dep’t. of Homeland Sec., EEOC Appeal No. 01A53109 (Mar. 31, 2006). 2021001165 5 Even if done in a confrontational manner, a supervisor assigning work duties or questioning an employee about their work duties is a “common workplace occurrence.” See Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). The Commission has repeatedly stated that allegations describing “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, do not rise to the level of hostility necessary to constitute harassment. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Complainant’s subjective assertion that she felt like she was in a hostile environment which caused “higher levels of stress and higher levels of anxiety” are not sufficient to meet the objectively offensive standard required by Title VII. ROI at 69; see Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). Therefore, we conclude that the Agency did not subject Complainant to a hostile work environment on the basis of her sex. 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 finding of 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 2021001165 6 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. 2021001165 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’s signature Carlton M. Hadden, Director Office of Federal Operations January 18, 2022 Date