Casie S.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

2020004116 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Casie S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004116 Hearing No. 440-2018-00053X Agency No. 4J-530-0061-17 DECISION On June 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 11, 2020 final action concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Elk Grove Village Branch (EGV Branch) of the Arlington Heights Post Office in Elk Grove Village, Illinois. On April 3, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), disability, and in reprisal for prior protected EEO activity (Agency No. 4J-530-0129-16) when: 1. on January 17, 2017, a supervisor verbally harassed Complainant; 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. 2 2020004116 2. on January 18, 2017, a supervisor charged Complainant Absent Without Official Leave (AWOL), pointed her finger in her face, and threatened her; 3. on or around January 27, 2017 Complainant was placed on Emergency Placement; 4. on or around March 28, 2017, Complainant was placed on Emergency Placement; 5. Complainant was denied a reasonable accommodation; 6. Complainant was given investigative interviews; 7. management made slanderous statements about Complainant; 8. management asked Complainant’s co-workers to write statements against Complainant; and 9. Complainant’s schedule was changed.2 After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for Summary Judgment. Complainant responded to the motion. On June 3, 2020, the AJ issued a decision by summary judgment in favor of the Agency. Thereafter, the Agency issued its final action adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2 The record reflects that claims 6 - 9 were later amended to the instant formal complaint. 3 2020004116 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction 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 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Based on the evidence developed during the investigation of the complaint, we concur with the AJ’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant identified her disability as ankle impairment as a result of an on-the-job injury. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. Complainant identified the Supervisor, Customer Service, also one of Complainant’s direct supervisors and the Postmaster of the Arlington Heights Post Office as the responsible managing officials. During the relevant period, Complainant had work restrictions as a result of her ankle impairment including limitations to the amount of walking and standing she could perform. Her work restrictions indicated that she could only walk on flat surfaces and only delivery business and mounted (driven) routes. In addition, Complainant’s work restrictions included the following limitations: lifting 50 pounds, 8 hours intermittently; standing, 4 hours continuously; walk, 8 hours intermittently; no climbing; kneeling, bending/stooping, twisting, and pulling/pushing, 8 hours intermittently; simply grasping, fine manipulation, and reaching above shoulders, 8 hours continuously. On June 16, 2017, Complainant’s physician signed a statement indicating that Complainant was able to perform her letter carrier duties on business street routes. As a result, Complainant was accommodated with modified assignments to perform business delivery and pickups. 4 2020004116 However, as noted by the AJ, management received a number of co-worker and customer complaints regarding Complainant. For instance, on January 2017, the EGV Branch Mail Processing Clerk provided a written statement regarding Complainant that stated, “[a]s I was doing the cage [Complainant] came to get her stuff. While I was giving the Express to her she then said ‘I’ll show [supervisor] I’ll get her good’ in a threatening way. I’m concerned about [Complainant] trying to attack/hurt [supervisor] and everybody inside the post office.” Shortly thereafter, on January 19, 2017, an anonymous EGV Branch employee provided a written statement that stated, “[p]ersonally, the presence of my co-worker [Complainant] makes me uncomfortable, uneasy, and is a distraction to the work floor. On several occasions [Complainant] has paced the workroom floor out-bursting loudly as if she wants other co-workers to know what is going on with her and management. I feel this is unprofessional, I am unsure of her capability of harmful actions to myself or others!” On January 19, 2017, EGV Branch City Carrier (EGV Branch City Carrier 1) provided a written statement that stated “…when [Complainant] is upset and argumentative with management, she seems to lose control and common sense. For this reason, it concerns me about her military training and weapon training she received in the military that she could be out of control and not thinking straight and could use deadly force. Also her attitude is bad for work morale!” On or about January 18, 2017, EGV Branch City Carrier (EGV Branch City Carrier 2) approached the supervisor and told her that she has a “target on her back” and that Complainant is acting very erratically and he is worried that she might bring a gun into the EGV Branch. The supervisor asked the EGV Branch City Carrier 2 if he was willing to write a statement. He initially agreed but changed his mind after EGV Branch City Carrier 1 told him that Complainant threatened him after she discovered he wrote a statement about her. In addition, the union steward requested that the supervisor move her case, which was next to Complainant’s case, because she was tired of hearing Complainant threatening to sue her and telling her she was a poor union steward. Regarding claim 1, Complainant asserted that on January 17, 2017, a supervisor verbally harassed Complainant. The Supervisor, Customer Service (African-American) stated that on January 17, 2017, she and Complainant had a discussion concerning Complainant’s request for assistance on her route. The supervisor stated that during their discussion, Complainant began raising her voice and then left the facility. The supervisor further stated that Complainant requested to speak with her union steward and she ultimately agreed that a union steward should be brought in because she needed to conduct a Pre-Disciplinary Interview (PDI). Complainant informed the supervisor that she was leaving and walked out without completing a request for leave. Furthermore, the supervisor stated that she and Acting Manager, Customer Service of EGV Branch agreed that Complainant’s time for the remainder of the day would be entered as AWOL. 5 2020004116 Regarding claim 2, Complainant alleged that on January 18, 2017, a supervisor charged Complainant AWOL, pointed her finger in her face and threatened her. The supervisor stated that when Complainant reported to work, she asked the supervisor if she had Complainant’s timecard and she responded ‘yes’ and handed Complainant a PS Form in which she was charged AWOL for the prior day. Complainant refused to sign the form. The supervisor stated that she then conducted a PDI with Complainant and her union steward regarding her conduct on January 17 and 18, 2017. Following the PDI, the supervisor agreed not to issue any corrective action. Complainant claimed that following the PDI she approached the supervisor and repeatedly said “give me my [time]card” and that the supervisor stuck her finger close to Complainant’s face and said in a low voice “I’m going to make you pay for that comment.” She then called 911 and reported that she was afraid of the supervisor. The Elk Grove Village police officer arrived at the EGV Branch and spoke with Complainant, supervisor, and Acting Manager. He concluded that the incident was a civil matter and informed Complainant that she could return to work if she could do without creating a disturbance. As a result of the incident, Complainant filed a grievance. On May 18, 2017, the Dispute Resolution Team concluded that Complainant “provoked [supervisor] and that the alleged response from [supervisor] did not constitute an assault or threat.” The Agency agreed to convert 6.49 hours of AWOL to unscheduled sick leave. Regarding claim 3, Complainant alleged that on or around January 27, 2017 Complainant was placed on Emergency Placement. The AJ noted that on January 27, 2017, Complainant completed her assigned work at approximately 2:30 p.m. and was instructed by the Postmaster and Acting Manager to end her tour and leave for the day. The Postmaster stated that Complainant refused to leave the facility and began arguing with him and the Acting Manager because she had not completed a full 8-hour day. Thereafter, the Postmaster informed Complainant that she was being placed on Emergency Conduct due to her conduct and refusal to leave the facility. Regarding claim 4, Complainant claimed that on or around March 28, 2017, Complainant was placed on Emergency Placement. The supervisor stated that on March 28, 2017, she was the deciding official to place Complainant on Emergency Placement because she was in fear of Complainant based on her conduct during the PDI. Complainant refused to participate and left the meeting because she believed the supervisor was conducting PDI to harass her. The supervisor stated that Complainant “stormed back into office yelling at me [and] walking toward me pointing her finger stating I was going to get away w/harass her.” The supervisor stated that she asked Complainant “to quiet down, she got louder.” She then instructed Complainant to leave or she would call the police. As result of her grievance settlement, Complainant returned to work on April 13, 2017. 6 2020004116 Regarding claim 6, Complainant claimed that she was given investigative interviews. The record reflects that the supervisor held investigative interviews with Complainant on several occasions based on her conduct in the workplace. Complainant asserted that she attended investigative interviews on February 27, 2017, March 28, 2017, and April 18, 2017. Complainant did not receive discipline as a result of these three investigative interviews. Regarding claims 7 and 8, Complainant claimed that management made slanderous statements about Complainant and on dates to be specified, management asked her co-workers to write statements against her. The supervisor denied making slanderous statements about Complainant. Th supervisor noted that Complainant claimed that saying “Good morning” was not appropriate.” She further noted that many employees “had come to me stating they feel unsafe around [Complainant], that she is unstable, hostile [and] saying things to them that insinuates she is considering being violent at work.” Regarding claim 9, Complainant asserted that on a date to be specified, Complainant’s schedule was changed. The AJ noted that on February 27, 2017, Complainant received a modified job offer with the hours of 9:00 a.m. to 5:30 p.m. She claimed she was offered no reason for the change in her schedule. Prior to this new schedule, Complainant had worked a modified job offer with the hours of 7:30 a.m. to 4:30 p.m. The supervisor explained that she changed Complainant’s start time due to her constant disruptions and violation of the Zero Tolerance policy. She also noted that several employees expressed fear that Complainant was a threat to herself or others. The undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Harassment To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, race, disability and/or retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, the AJ found that the evidence of record did not establish that Complainant was subjected to harassment based on race, disability and prior protected activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment claim was also proper. 7 2020004116 We discern nothing in the present record reflecting that the Agency’s conduct on this issue, or in any other matters, reflects hostile or abusive conduct based on Complainant’s race, disability or prior EEO activity. Denial of Reasonable Accommodation (claim 5) Here, the AJ noted that even presuming that Complainant is disabled for purposes of the Rehabilitation Act, Complainant claimed that she was denied a reasonable accommodation when beginning January 27, 2017 and March 28, 2017 when she was placed on Emergency Placement. We determined that the AJ properly found that there is no evidence of Complainant requesting a reasonable accommodation. Complainant had admitted that she did not formally apply through the Agency’s reasonable accommodation committee for any sort of reasonable accommodation. The AJ nonetheless determined that Complainant had work restrictions due to an on-the-job ankle injury, and that the Agency offered her accommodations for the injury, including modified job duties that comported with her work restrictions. We concur with the AJ’s conclusion that there is no evidence that the Agency violated the Rehabilitation Act by failing to provide Complainant her with reasonable accommodation for her known medical condition. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 8 2020004116 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, 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. 9 2020004116 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 November 18, 2020 Date