Leoma B.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Nov 18, 2020

2020002542 (E.E.O.C. Nov. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leoma B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020002542 Hearing No. 461-2019-00136X Agency No. 4G-700-0077-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 28, 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. 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. ISSUES PRESENTED The issues are whether: (1) the Administrative Judge properly dismissed Complainant’s hearing request; and (2) Complainant established that the Agency subjected her to discrimination and harassment based on her race and disability, and in reprisal for protected EEO activity. 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. 2020002542 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Carrollton Station in New Orleans, Louisiana. Complainant stated that she saw her first- line supervisor (S1) (African American, unknown disability status) on her route on February 20- 21, 2019, and March 16, 2019. Report of Investigation (ROI) at 82. Complainant stated that on March 11, 2019, S1 subjected her to an attendance review for absences from January 1, 2019, through March 11, 2019. ROI at 84. On March 15, 2019, a Manager (M1) (African American, unknown disability status) conducted an investigative interview with Complainant regarding her attendance. M1 requested explanations for thirteen incidents of unscheduled annual and sick leave, absence without leave, and leave without pay. Complainant responded that it was due to her “restrictions” and stress caused by management officials. ROI at 147-8. On March 15, 2019, a different Manager (M2) (Caucasian, unknown disability status) issued Complainant a Letter of Warning (LOW) for Failure to Follow Instructions. M2 stated that Complainant failed to follow the instructions to leave the building to start her route and was argumentative. M2 noted that during the investigative interview conducted on March 13, 2019, Complainant did not provide a reasonable explanation as a mitigating factor for her failure to follow instructions. ROI at 149-50. The LOW was rescinded as a resolution to Complainant’s grievance because management failed to adequately provide Complainant with the reasonable details of the charges to give her an opportunity to respond. ROI at 158-61. On April 17, 2019, S1 issued Complainant a LOW for Failure to Follow Instructions. S1 stated that on April 8, 2019, she instructed Complainant to load her vehicle, who refused by yelling in “a hostile manner.” During the investigative interview, Complainant replied, “no response,” to S1’s questions. S1 determined that Complainant’s explanations were unacceptable and did not excuse or mitigate her behavior. ROI at 151-2. Complainant stated that from February 25, 2019, through April 6, 2019, she submitted a form 3996 to request auxiliary assistance, and that some of her requests were denied. ROI at 96. EEO Complaint On April 25, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (African-American) and disability (mental and physical), and in reprisal for prior protected EEO activity (instant EEO complaint) when: 1. on February 2, 2019, March 11, 13, and 15, 2019, April 8, 2019, and May 16, 2019, she was spoken to in a “loud manner”; 2. on February 20-21, 2019, and March 16, 2019, she was observed while performing her duties; 2020002542 3 3. on March 11, 2019, she was subjected to an attendance review; 4. on March 15, 2019, she was subjected to an investigative interview regarding her attendance; 5. on March 15, 2019, she was issued a LOW for failure to follow instructions; 6. on April 19, 2019, she was issued a LOW for failure to follow instructions; and 7. on February 25, 2019, March 8, 13, and 14, 2019, her form 3996 requests for assistance were denied, which Complainant alleged was a denial of a reasonable accommodation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 3, 2019, the AJ issued an Order to Show Cause for Complainant to explain why her hearing request should not be dismissed based on her failure to comply with the AJ’s order and for failure to prosecute her complaint. The AJ noted that Complainant did not submit her Initial Conference Report nor attend the scheduled Initial Conference via telephone. The AJ stated that he attempted to contact Complainant for the Initial Conference and was unable to reach her. On December 20, 2019, the AJ dismissed Complainant’s hearing request. The AJ stated that Complainant did not respond to his Order to Show Cause, and he found that her non-compliance with his orders warranted the sanction. The AJ also noted that he sent emails to the address provided by Complainant, and that he did not receive a “bounce back.” The AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that claims 5-7 were independent claims and analyzed them as discrete claims of discrimination, while incidents 1-4 were only analyzed as part of Complainant’s harassment allegation. The Agency found that Complainant was an individual with a disability, but that Complainant did not establish that her medical condition required an accommodation in the form of assistance. The Agency found that Complainant did not establish a prima facie case of discrimination for claims 5-7 because she did not show that similarly situated employees outside of her protected classes were treated more favorably. However, the Agency assumed for the sake of argument that she had, and it determined that management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency then found that Complainant did not show that the reasons were pretexts for discrimination. Regarding Complainant’s harassment claim, the Agency determined that Complainant did not provide any evidence to show that the management officials’ conduct was based on any of Complainant’s protected classes. 2020002542 4 In addition, the Agency found that the incidents were minor, transitory, and ephemeral in nature, and did not rise to the level of unlawful harassment. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a statement and additional documents in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s contentions On appeal, Complainant argues that she did not receive any calls, voicemails, or emails from the AJ. Complainant specifically notes that she did not receive the AJ’s Order to Show Cause, and that the first email she received was the notification of the dismissal order. Complainant also asserts that her mail has been tampered with and that the Agency has delayed her mail, which led to the dismissal of her hearing request. Complainant also raises a court summons related to an allegation that she “swung but missed” at a mail carrier. In addition to her statement, Complainant submitted additional documents. For example, her court summons, photos of postal vehicles that Complainant alleges were used to follow her, and the email notification regarding the AJ’s dismissal order. Complainant requests that the Commission reverse the AJ’s dismissal of her hearing request. Agency’s contentions The Agency argues that the record evidence shows that the alleged harassing behavior was neither severe nor pervasive, and not based on Complainant’s protected status. The Agency asserts that Complainant experienced an unpleasant work environment and managerial decisions that she did not agree with, which does not amount to harassment in violation of Title VII. The Agency also notes that management officials articulated legitimate, nondiscriminatory reasons that Complainant cannot refute as pretextual. The Agency states that Complainant cannot offer any specific evidence in support of her bare assertions of discrimination and is relying solely on general conclusory statements, which are insufficient to refute the Agency’s legitimate, nondiscriminatory and nonretaliatory reasons for its actions. The Agency requests that the Commission affirm its final decision. 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 (EEO MD- 110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires 2020002542 5 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”). Hearing Request Dismissal Under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dept. of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). On appeal, Complainant argues that the dismissal of her hearing request should be reversed because she did not receive the AJ’s emails, and that the Agency intentionally slowed the delivery of her mail. However, we find that Complainant did not provide any evidence to support her assertions. Regarding the AJ’s emails, the record shows that the AJ consistently used the same email address that Complainant provided throughout the EEO process, and he noted that he did not receive a “bounce back” to indicate that his emails were not delivered. In addition, Complainant included a copy of the email showing her successful receipt of the AJ’s dismissal order at the same email address. Accordingly, we find that the AJ did not abuse his discretion when he dismissed Complainant’s hearing request and we decline to reverse the AJ’s dismissal order. New Evidence As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, we decline to consider this new evidence on appeal. For the sake of argument, we find that even if this evidence is considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove by a preponderance of the evidence that she was subjected to discrimination or harassment. Failure to Provide Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). 2020002542 6 An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that Complainant did not show that the Agency failed to provide a reasonable accommodation. Complainant stated that she is physically restricted in not lifting more than 20 pounds and cannot work more than 8 hours per day, and she provided medical documentation to support her restrictions. ROI at 77,107-42. The record shows that Complainant’s submitted 3996 forms for assistance on February 25, March 8, 13, and 14, 2019, which were denied.2 ROI at 154-7. S1 stated that she denied Complainant’s requests on March 8, and 14, 2019, because the forms were not properly completed. S1 stated that when she instructed Complainant to complete them properly, she refused. S1 noted that even though her requests for assistance were not granted, Complainant’s noted restrictions were not violated. ROI at 204-5. M2 stated that when she asked Complainant why she needed two hours of assistance, Complainant responded that it was due to her “restrictions,” but she could not reasonably explain why she needed two hours. ROI at 224. After receiving a request for reasonable accommodation, “it may be necessary for the [agency] to initiate an informal, interactive process with the individual with a disability . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3); see also Enforcement Guidance at Question 5. In this case, M2 engaged in the interactive process when Complainant stated that the requests for the auxiliary assistance were due to her restrictions. However, Complainant was unable to connect her requests to her restrictions. We note that while Complainant was unable to lift more than 20 pounds and she could not work more than 8 hours per day, there is no explanation how auxiliary assistance accommodated her restrictions. As such, we find that Complainant did not establish that the Agency discriminated against her based on a disability when it denied her requested accommodation of auxiliary assistance. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 2 We note that Complainant stated that she was diagnosed with her mental conditions on April 9, 2019, which was after these incidents. ROI at 77. 2020002542 7 Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and race, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for claims 5 and 6. For claim 5, M2 stated that she issued the LOW because Complainant failed to follow her “simple” instructions. ROI at 216-7. Regarding claim 6, S1 stated that she issued the LOW for Complainant’s violation of various sections of the Employee and Labor Relations Manual, including discharge of duties and obedience to others. ROI at 201. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000) (internal quotation marks omitted); see also McDonnell Douglas, 411 U.S. at 804-05. Here, Complainant did not provide any evidence to show that the management officials’ reasons were unworthy of belief, and she only made bare assertions that management officials discriminated against her, which are insufficient to prove pretext. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her disability or race, or in reprisal for protected EEO activity when it issued her letters of warning on March 15, 2019, and April 17, 2019. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). 2020002542 8 As discussed above, we found that Complainant did not establish a case of discrimination on any of her bases for claims 5-7. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that these actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As such, we will not consider claims 5-7 in Complainant’s harassment claim. We find that Complainant belongs to statutorily protected classes based on her disability, race, and EEO complaint, and that she was subjected to unwanted verbal conduct. However, we find that Complainant did not show that the complained of incidents occurred due to any of her protected classes. For example, the record shows that incidents 3 and 4 occurred due to Complainant’s repeated attendance issues. In addition, we find that even if Complainant’s managers spoke to her in a “loud manner,” we note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). There is no evidence that the alleged incidents of harassment altered the conditions of Complainant’s employment. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her disability or race, or in reprisal for protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ did not abuse his discretion when he dismissed Complainant’s hearing request, and we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her disability or race, or in reprisal for protected EEO activity. 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). 2020002542 9 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, 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. 2020002542 10 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