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

Equal Employment Opportunity Commission

Nov 16, 2020

2019005342 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diane M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2019005342 Agency No. 4E-570-0043-18 DECISION 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 15, 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 Complainant worked as a Postmaster, EAS-22, at the Post Office in Bismarck, North Dakota. In an EEO complaint initially filed on October 25, 2018, Complainant alleged that the Agency subjected her to discrimination and a hostile work environment because of her sex (female) and disability (back/sciatica/plantar fasciitis / loss of reproductive organ)2 when: 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 Complainant acknowledged in her investigative affidavit that she did not believe that her medical condition was a factor in any of the incidents described in her complaint. Investigative Report, pp. 182, 187, 191, 195, 199, 204. Nonetheless, the Agency’s final decision addressed this basis and it is not entirely clear whether Complainant actually intended to withdraw this basis of 2019005342 2 1. On July 16, 2018, the Post Office Operations Manager (POOM) and the District Manager (DM) asked Complainant to provide information regarding the leave she had taken for the previous 12 months; 2. On August 1, 2018, POOM threatened to fire Complainant; 3. On August 1, 2018, POOM made Complainant request access in order to work remotely while she was out on leave under the Family and Medical Leave Act (FMLA); 4. On August 17, 2018, POOM informed Complainant that she would be sent to training in Bozeman, Montana for training on how to run a delivery unit; 5. On August 27, 2018, Complainant learned that her request for a reasonable accommodation was shared with another Postmaster (PM2); 6. On September 4, 2018, POOM suggested that Complainant “do something nice” for the Acting Postmaster (APM) who filled in for her while she was at training; and 7. On September 20, 2018, Complainant was put off duty on emergency placement. On January 19, 2019, Complainant amended her complaint to include the following three additional allegations raised solely on the basis of reprisal for having filed the instant EEO complaint: 8. On an unspecified date, Complainant’s union representative was not allowed to be present during a “650” mediation; 9. On December 18, 2018, POOM denied Complainant's request for personal leave on several afternoons during the holiday delivery season; and 10. On December 18, 2018, POOM denied Complainant’s request for leave on December 26, 2018. The Agency dismissed the allegation pertaining to incident (8) for failure to state a claim on the grounds that since the 650 mediation was a process separate from the EEO administrative complaints process, the allegation amounted to a collateral attack on the 650 proceeding. Investigative Report (IR) 114-15. Complainant did not appeal this determination. At the conclusion of the ensuing investigation of the accepted claims, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). discrimination. Therefore, under the circumstances present and in the interests of fairness, the Commission will analyze this basis of discrimination in this decision. 2019005342 3 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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. Incident (1): Complainant claimed that on July 16, 2018, POOM asked her to provide information on leave she had taken over the previous 12 months. She further alleged that no discussion had taken place regarding the request, and that no reason was ever given to her. IR 176-77. POOM and DM responded that the Finance Manager had reported to DM what appeared to be irregularities in the documentation of Complainant’s attendance. Consequently, DM had instructed POOM to make the request, with which Complainant had complied. After reviewing the records, POOM concluded that there were no inaccuracies, missed entries, or integrity issues in Complainant’s leave records. IR 287-89, 404. Incident (2): Complainant averred that on August 1, 2018, POOM threatened to fire her despite the fact that she had informed him the night before that she would be on the workroom floor if she was not in her office. A Union Representative stated that Complainant had called her in tears over POOM’s alleged threat. POOM denied making the threat. He stated that he said something to the effect of pulling the plug and starting over because he had observed many deficiencies, including carriers not being in their cases, phones not being answered, and personnel not following procedures. He further affirmed that he was merely trying to get the point across that Complainant was unprofessional, argumentative, and insubordinate. IR 291-98. Incident (3): Complainant alleged that on August 1, 2018, POOM made Complainant request access to her office network in order to work remotely at the same time that she was out of work on FMLA leave. She maintained that POOM required her to obtain either VPN access or use a token in order to obtain access, and that POOM did not give a reason for imposing this requirement. IR 185-186. According to POOM, Complainant informed him that while she was on leave visiting her mother, she intended to visit a local post office near her mother’s home while on FMLA leave so that she could check emails. POOM then offered Complainant a loaner laptop. Complainant accepted the offer and requested a token. DM approved the request. IR 298-303, 411. Incident (4): Complainant claimed that on August 17, 2018, POOM sent her to training in Bozeman, Montana on how to run a post office and again, did not give a reason. She acknowledged that the DM had approved her travel and that she completed the training. IR 188, 190. According to POOM, Complainant was agreeable about the training because the supervisors under her were relatively inexperienced and needed guidance on how to improve the Bismarck Office’s delivery metrics. The Officer-In-Charge of the Bozeman Post Office averred that Complainant had agreed to come to her facility in order to observe its operations and how supervisors interacted with employees. IR 303-07, 369. Incident (5): Complainant claimed that on August 27, 2018, she found out that her request for a reasonable accommodation to drive to Bozeman in her own vehicle was shared with PM2. 2019005342 4 She stated that when she arrived at the training, PM2 had asked her if she had a medical restriction, for which POOM had granted her an accommodation. IR 192-93, 195. POOM confirmed that he had approved Complainant’s request to drive to Bozeman in her own car as a reasonable accommodation. IR 307-12. PM2 affirmed that he had simply mentioned to Complainant that she was fortunate to be able to drive her personal vehicle to make the trip to Bozeman, and that Complainant had explained to him that she had a back condition that required her to do so. PM2 reiterated that he did not initiate the discussion about her medical condition. He also stated that he had asked Complainant if she would be able to do a route inspection which would require that she walk for 10 miles and that Complainant told him that it would not be a problem. IR 353. The Officer-In-Charge at Bozeman, who was present at the training, corroborated PM2’s affidavit testimony. IR 372. Incident (6): Complainant alleged that on September 4, 2018, POOM suggested that she “do something nice for APM, who had filled in for her while she was at Bozeman for training. IR 197. POOM averred that he recalled suggesting to Complainant that she recognize APM by taking him out to lunch or verbally thanking him for his assistance in covering her post office while she was away. POOM noted that he said nothing that could be interpreted as sexual innuendo and that there was a $10.00 limit for gifts to peers and subordinates. IR 312-15, 358. Incident (7): Complainant claimed that on September 20, 2019, POOM and a Labor Relations Manager (LRM) within the District Human Resources Office put her off duty on emergency placement. According to the notice, and to a subsequent Letter of Warning arising from the same incident, Complainant failed to follow safety protocols after one of the carriers under Complainant’s supervision struck a bicyclist. Complainant returned to duty on October 23, 2018 and was given a Letter of Warning in lieu of a 14-Day Suspension. IR 201-03, 230, 315-321, 387- 88, 466-67, 476-478, 489-494. Incidents (9) & (10): Complainant alleged that on December 18, 2018, POOM denied Complainant’s request for personal leave on several afternoons during the holiday delivery season, including December 26, 2018. According to Complainant, POOM reminded her that she was the Postmaster of Bismarck and that he expected her to provide leadership during the busiest week of the year. IR 266-67, 271-72. POOM confirmed that he had made the statement attributed to him by Complainant. He averred that Complainant had never submitted a formal leave request to him in December 2018. IR 331-42, ANALYSIS AND FINDINGS 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 2019005342 5 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since POOM and the other named officials articulated legitimate and nondiscriminatory reasons for their actions vis- à-vis Complainant. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding incident (1), POOM stated that he was ordered by DM to collect information about Complainant’s leave usage. Complainant provided the requested information and the matter was resolved after it was determined that there were no inaccuracies. As to incident (2), POOM had pointed out to Complainant numerous deficiencies in the delivery operation that she was responsible for running. While POOM expressed his displeasure with the status of the operation and Complainant’s response to his feedback, he denied threatening to fire Complainant. Concerning incident (3), POOM stated that he was attempting to provide Complainant with a laptop so that she could check on her emails from the security of a local post office near her mother’s home. With respect to incident (4), POOM stated that Complainant wanted to take the training because of the relative inexperience of her subordinate supervisors. With regard to incident (6), POOM suggested to Complainant that she acknowledge APM’s efforts in taking over management of the Bismarck Post Office during her training session. Regarding incident (7), the notice of off-duty placement and the Letter of Warning clearly state that Complainant was remiss in following safety protocols following a traffic accident in which one of her carriers was involved. As to incidents (9) and (10), POOM stated that he needed Complainant to be present during the busiest delivery time of the year for the needs of the office. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations put forward by POOM and the other officials are pretexts for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, 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. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that her sex was a factor in connection with incidents (1) through (4), (6), and (7), Complainant replied that most of the postmasters under POOM’s supervision were male and that she was being singled out 2019005342 6 in ways that they were not. IR 178, 182, 187, 191, 195, 199, 204. When asked a similar question as to why she believed that she was being retaliated against for having filed the instant EEO complaint in connection with incidents (9) and (10), Complainant insisted that her presence was not needed to ensure that the mail got delivered during the holidays. IR 268, 272, 275. Apart from these uncorroborated and unsupported assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by POOM, DM, and the other officials or which would cause us to question the veracity of these individuals as witnesses. We therefore agree with the Agency that the record is not sufficient to support Complainant’s claim that she was subjected to discrimination or reprisal regarding any of the incidents described above. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to non-sexual harassment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must 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 actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Furthermore, a fair reading of the record reveals that Complainant believes that she was subjected to sexual harassment with regard to incident (6). To prevail on a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer; in other words, did the Agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The record indicates that Complainant alleged that POOM suggested she “do something nice” for APM for filling for her. Complainant alleged that POOM suggested that Complainant “take him out to dinner” and that “it should be something special.” POOM denied making the comments as alleged; rather, he stated that he encouraged Complainant to thank APM by taking him out to lunch or verbally thanking him. POOM denied saying anything that could be interpreted as sexual innuendo and affirmed that he was only trying to provide coaching to Complainant to acknowledge employees who provide help. IR 312. Complainant stated that she did not comply with the suggestion. There is no evidence indicating that Complainant reported this incident to any official or that a similar incident recurred. 2019005342 7 The Commission finds insufficient evidence establishing that Complainant was subjected to unwelcome sexual conduct or requests for favors under the circumstances present. As a result, the Commission finds that Complainant has not established that she was subjected to sexual harassment or a hostile work environment as alleged. Confidential Medical Information Disclosure (Claim 5) Finally, to the extent that Complainant alleged that officials may have improperly disclosed her confidential medical information, the Commission notes that information regarding Complainant’s medical condition or history must be treated as a confidential medical record, disclosure of which without authorization is a per se violation of the Rehabilitation Act. 29 C.F.R. § 1630.14(c)(1); Velva B. v. U.S. Postal Serv., EEOC Appeal Nos. 0720160006 & 0720160007 (Sept. 25, 2017), req. for recon. den’d EEOC Request Nos. 0520180094 & 0520180095 (Mar. 9, 2018). According to PM2 and the Officer-In-Charge at Bozeman, PM2 had merely observed that Complainant was able to drive her own car from Bismarck to Bozeman, and that it was Complainant who volunteered that she was allowed to use her own car as a reasonable accommodation for her back condition. We therefore find, with respect to incident (5), the evidence is insufficient to establish that any Agency official violated the disclosure prohibitions set forth in the Rehabilitation Act or its implementing regulations. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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). 2019005342 8 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. 2019005342 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 November 16, 2020 Date