Tabetha M.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Sep 22, 2020

2019003529 (E.E.O.C. Sep. 22, 2020)

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 (Western Area), Agency. Appeal No. 2019003529 Agency No. 4E-852-0063-18 DECISION On May 2, 2019, 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 April 1, 2019, 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 this complaint, Complainant worked as a City Carrier at the Agency’s Bullhead City (BHC) Post Office in Bullhead City, Arizona. On May 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (mental and physical) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 as evidenced by four separate events that form the bases of her allegations. The record indicates that Complainant has filed prior and current EEO complaints dating back to 2006 of which current management officials were aware, and in some of which they were involved. 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. 2019003529 2 Complainant has an unspecified physical disability; and obsessive compulsive disorder and chronic anxiety, a mental disability that affects her ability concentrate, and she overthinks. Management was aware of her conditions. She has no work restrictions. Claim 1: On January 31, 2018, Complainant discovered she was not invited to a career symposium for upward mobility. Complainant alleged that she learned a career symposium had been held when she heard other letter carriers discussing the event at a Union meeting, stating her belief that the Postmaster (PM1) and two Customer Service supervisors (S1 and S2) were aware of the symposium but would not allow her on postal property to attend. Complainant alleged that her not being invited to the career symposium was disparate treatment based on her disability. Complainant also alleged that her prior EEO activity was a factor because PM1 had previously sent off paperwork for a fitness for duty exam for Complainant one day after the issuance of a Commission decision finding which, Complainant stated, was against the Agency.2 She identified two other City Carriers whom she alleged received more favorable treatment because they were allowed to attend the symposium even though they both care for a family member with a disability; and that management has an agenda against Carriers with disabilities but not against Carriers caring for family members with a disability. Claim 2: On April 25, 2018, Complainant became aware that she was passed over for a Clerk Custodial position. Complainant stated her belief that management had passed her over for the position at issue (for which she did not apply), asserting that it was the fault of management and the Disability Reasonable Accommodations Committee (DRAC) for not reinstating her into her carrier position, and for not accommodating her in 2014. She alleged that management failed to look for any positions in BHC, and had given the job to a lesser qualified coworker. Complainant also stated her belief that her medical conditions were a factor in being passed over for the position because she has a mental disability and management has refused to take any action towards getting her into any position anywhere since 2014; and that her prior EEO activity was a 2 Notably, in EEOC Appeal No. 0120151126, the Agency had sent Complainant for a fitness for duty exam based on advice from the DRAC due to Complainant’s decline in performance, her repeated objection to following management’s instructions, and her statements that she suffers from disabilities that did not coincide with what was reviewed in a previous DRAC. PM1 had also referenced Complainant’s refusal to provide medical documentation from her physician about her work restrictions and refusal to attend DRAC after the first meeting as reasons to keep her away from the workplace until receiving the results of the fitness-for-duty examination. OFO had found that these reasons are job-related and consistent with business necessity, and the Agency did not violate the Rehabilitation Act by sending Complainant or keeping her out of the workplace until she had been to the examination. 2019003529 3 factor because the DRAC team and PM1 had made it fairly clear that they do not want her in the facility or in any USPS facility. Claim 3: On July 13, 2018, Complainant received a letter instructing her to report for a Fact- Finding Interview on July 20, 2018. Complainant alleged that, after four years of no contact, S1 sent her a letter with instructions that she report for a fact-finding interview. She questioned this action because she had been off work since July 2014. Complainant acknowledged that the fact-finding interview was cancelled, and not rescheduled; and that the interview was to be telephonic because management continued to treat her as a threat and would not allow her on Agency property. Complainant stated her belief that this was harassment because S1 had not had any contact with her since approximately June 2014; and S1 had to be retrained per an EEO decision and OFO recommendation. She stated her belief that her medical condition was a factor in being instructed to attend the fact-finding interview because she had been kept out of work by management and the DRAC due to her disability; and that her prior EEO activity was a factor because she believed S1 was upset about having to endure more training on account of Complainant. Claim 4: On unspecified dates, management withheld checks or payment from Complainant. Complainant alleged that she did not receive compensatory damages owed her as a result of a previous EEO complaint, stating that she did not have any details regarding who was withholding checks; and that a coworker told her that management was withholding checks from her. However she acknowledged that the only payments she was actually owed were OFO-ordered compensatory damages totaling $28,865.00, asserting that she never received the compensatory damages, and had to withdraw her appeal on the matter after a family member had an emergency medical issue. 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). In accordance with Complainant’s request, the Agency 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 as alleged. CONTENTIONS ON APPEAL In her Appeal Brief, Complainant reiterates her allegations, requesting that the Commission reverse the Final Agency Decision, find in her favor, award compensatory damages, and order that the Agency comply with past relief orders. The Agency did not submit an Appeal Brief. 2019003529 4 STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, a 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 initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at 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). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and harassment/hostile work environment based on disability and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Claim 1, management explained that Complainant was not denied the ability to attend the career symposium, a strictly voluntary off-the-clock function for employees; that notices of the event were posted at multiple locations in the office; that Complainant could have contacted management and she would have been allowed to attend the symposium if she wanted to; and that they received no request or call from Complainant regarding her interest in the event. Management also explained that Complainant is allowed to use the BHC retail complex but is not generally permitted in the secured "employee only" areas since she is not presently working; and that should she have a legitimate need to be in the secured area, either she or a union representative could raise the need with management and it would be considered. Complainant disagreed with these explanations but presented no evidence to demonstrate that her disability played a role in her not being invited to the career symposium in Claim 1. 2019003529 5 Regarding Claim 2, management explained that Complainant never applied for the position at issue, and she was not working at the time as she was on Leave Without Pay (LWOP). According to the Agency, all open positions are posted on the employee board, with copies given to the Union President for dissemination to members who are not present. In response, Complainant reiterated her allegations but presented no evidence to refute this explanation. Regarding Claim 3, record evidence shows that the interview at issue was cancelled; it was not rescheduled; and Complainant suffered no tangible employment harm as a result of S1’s letter. Complainant did not refute the record evidence. Because Complainant has failed to show that the Agency’s explanations for its action were pretexts for discriminatory animus, her disparate treatment claims fail. Dismissal of Claim 4 The Agency procedurally dismissed Claim 4 in which Complainant alleged nonpayment of compensatory damages from a past OFO order, citing record evidence reference to Agency Case No. 4E-852-0026-14 (EEOC No. 0120151126), a case that OFO remanded back to the agency for compensatory damages. The Agency also cited an email from Complainant in which she asked to withdraw her appeal of the Agency's Notice of Final Action in that remanded case which awarded her $28,865.60 (OFO notified Complainant in a November 7, 2018, letter that her appeal was closed as she had requested); and evidence of a check mailed to Complainant on December 4, 2018, for the awarded amount. The Agency asserted that Claim 4 is a request for compliance with Case No. 4E-852-0026-14; and that it is improper for Complainant to raise challenges to a previous complaint by way of a new filing as such a claim is properly addressed within the claim itself. We AFFIRM the Agency’s procedural dismissal of Claim 4 as expressing dissatisfaction with the EEO process in accordance with 29 C.F.R. 1614.107(a)(8) which provides, in pertinent part, that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Moreover, dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. Harassment Finally, to the extent that Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 2019003529 6 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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, 2019003529 7 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 September 22, 2020 Date