[Redacted], Addie V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022002025 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Addie V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2022002025 Hearing No. 560-2021-00236X Agency No. 4E-680-0010-21 DECISION On March 5, 2022, 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 February 7, 2022 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Full-Time Sales, Services/Distribution Associate, P-06, at the Main Post Office located in Topeka, Kansas. On January 26, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (physical and mental), age (55), and in reprisal for prior protected EEO activity when: (1) on October 13, 14, 19, 20, and 21, 2021, and various dates in 2019, Complainant worked through lunch periods and breaks and on October 20, 2020, her clock rings were altered to show she took lunch when she did not actually take a lunch; (2) on October 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. 2022002025 2 31, 2020, a supervisor (S1) screamed at Complainant and would not stop yelling at her even after she asked to be left alone, and she has not been informed about the results of the Publication 552 investigation; (3) on November 9, 2020, Complainant was given an Investigative Interview for not clocking in after lunch; (4) on November 27, 2020, Complainant was required to work alone for 11 hours with no lunch or breaks; (5) on December 10, 2020, Complainant was given an Investigative Interview and questioned about leaving 10 minutes early; (6) on December 17, 2020, Complainant was issued a Letter of Warning (LOW) for Failure to Follow Instructions; (7) on December 31, 2020, Complainant was informed that she was Absent Without Leave (AWOL); (8) on January 25, 2021, Complainant was sent an email stating she was not allowed to take a one-click lunch; and (9) on a date not specified, Complainant was told that she had to report to North Park on Saturdays. 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 EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. FACTUAL BACKGROUND Complainant experiences complications from several medical conditions including anxiety, panic attacks, Post-Traumatic Stress Disorder, Dissociative Disorder, Agoraphobia, severe depression, degenerative disc disease, high blood pressure, and Fibromyalgia. Complainant stated that these conditions are permanent, and that management was aware of her conditions. Complainant affirmed that she could perform window clerk duties and rarely needed assistance. Claim 1 - Working Through Lunch Complainant asserted that S1 altered her clock rings without an explanation. She further claimed that on October 13, 2020, she took lunch, but no break; on October 14, 2020, she did not have lunch or break; on October 19, 2020, she took lunch, but no break; on October 20, 2020, she did not have lunch or break; and on October 21, 2020, she did not have lunch or break. She contended that she has worked through three lunch periods and had altered clock rings for one of the lunches, and she also worked through 10 breaks. Complainant noted that on April 9, 2019, May 23, 2019, June 24, 2019, and other dates, time disallowed” was noted on her clock rings. Complainant stated that she believes her prior EEO protected activity was a factor because of how she has been treated over the years. When asked if she was aware of any employees who did not have clock rings altered, Complainant stated she did not know, and that not everybody had time taken from them. 2022002025 3 Complainant did state that a Parcel Clerk, North Park (C1) (age 60+, no EEO activity or medical condition) and a Window Clerk, North Park (C2) (age over 30, no EEO activity or disability) also had clock rings altered but could not provide dates. When asked to describe what happened with C1 and C2, Complainant replied, “I do not have that information.” S1 stated that employees were expected to take their designated lunch and breaks. S1 asserted that while there were no scheduled times due to the flow of retail customers, there was a rough outline of when lunch and breaks should be taken. S1 further stated that if an employee desired, or it was necessary to skip lunch, then a PS Form 3971 should be filled out requesting “no lunch” and it must be approved by a supervisor or manager. S1 denied ever stealing time from Complainant. Complainant's Time and Attendance Collection System (TACS) reports indicates: on October 13, 2020, she clocked out for lunch at 14.53 and returned 15.48; on October 14, 2020, she clocked out for lunch at 16.00 and 17.45, and returned at 17.46 and ended her tour at 17.60; on October 19, 2020, she clocked out for lunch at 14.97 and returned from lunch at 15.99; on October 20, 2020, she clocked out for lunch at 15.00 and clocked back in at 16.00; and on October 21, 2020, there was no lunch request. Claim 2 - Supervisor Harassment Complainant testified that on October 31, 2020, S1 came to the window and asked her if she called people to cancel their appointments. Complainant stated that she told him, no and that she was unaware she was supposed to. Complainant stated that S1 then screamed at her, “I told you to call them” and she replied that she must have misunderstood, but that he continued to scream “you didn't misunderstand,” and she screamed back in defense because he was scaring her. Specifically, she stated that she replied, “[S1], I didn't hear you, I must have misunderstood,” but he was still screaming, “we need to do more than our jobs sometimes, you know what to do”” and she screamed back at him, “I don't have a list to call.” She further asserted that S1 screamed while walking to the passport office and slammed the list on the counter and she screamed, “this is your office too you are here every day. I don't do passports and I don't know where he gets the list from. I don't have access to that information.” Complainant also stated that she asked S1 to leave her alone, but he continued to scream at her, and she screamed back “that isn't my fault. What is wrong with you?” Complainant further stated she was going to call the police, and S1 laughed, “You're going to call the police on me? Why?" and she replied, “because you are being abusive.” Complainant further asserts that she begged and screamed at S1 to leave her alone, at least six times; however, he just continued. She also stated that she said, “f**k you, [S1]” and he rushed into the doorway to the window area, and she was on the other side of the room, and he was puffing his chest and screaming “what did you say to me?” Complainant affirmed that she responded, "you heard me" and asked him to leave several times and that he was scaring her. Complainant also testified that she informed S1 that she was leaving, and he screamed at her that she could not leave. 2022002025 4 Complainant stated she slammed her water bottle on the counter and told him again to leave her alone and that she also dropped her glasses at his feet, and she “touched” his stomach so she could get them, because she did not want him to step on them, and he responded, “you're going to call the police on me? You just attacked me,” and she replied, “attacked you?” and he responded, “I didn't lay a hand on you did I?” Claim 3 - Investigative Interview Complainant states that another supervisor (S2) conducted an investigative interview with her on November 9, 2020, for not clocking in from lunch. She asserted that she should not have been given an interview because they just had a discussion a few days earlier and S2 had informed her that she just needed to fill out a form, but he did not ask her if she had filled out a form. Complainant also noted she could have filled out a form in minutes. Complainant asserted that her EEO protected activity was a factor because of the Publication 552 investigation.2 Complainant explained that as she walked into work, she was instructed to go for the Publication 552, and when she was finished, she was given the investigative interview and that she did not realize that she had not clocked in since coming back from lunch. Complainant also asserted that her medical condition was a factor because management was angry that she told on S1 for stealing her time. She added that management plays on her fears which causes her to react with distress and anxiety. The record shows that the investigative interview was conducted by S2 with Complainant and a union steward on November 9, 2020, regarding Complainant's clock rings and failing to clock back in from lunch on November 7, 2020, and to submit PS Form 1260 for the missing clock rings. Claim 4 - 11 Hours without Breaks or Lunch Complainant asserted that on November 27, 2020, she clocked in at 6.79 and clocked out at 17.79. She further stated she called C2 and asked if he was coming over to relieve her for lunch. According to Complainant, C2 advised her that he was not taking a lunch and was taking a one- click3 lunch. Complainant stated that she did not know what a one-click lunch was and that C2 took it upon himself to give her a half-hour lunch. Complainant stated that she was not originally scheduled for 11 hours. Complainant further explained that a coworker (C3) (age 65+, no EEO activity, disability) was the only window clerk for over six months, and if C3 did not work, management would send Complainant to the Main Office. Complainant noted that C3 did not work on November 27, 2020. Complainant further asserted that S1 told her that she would be taking a one-click lunch and that she did not need a lunch. 2 Publication 552 involves the Agency’s policy of providing a work environment free of all forms of harassment. 3 A one-click lunch is where an employee punches out, waits one click, and punches back in. 2022002025 5 Complainant asserted that her EEO protected activity was a factor because how she has been treated over the years. C2 asserted that on November 27, 2020, he was the only window clerk at the window because one of his coworkers was on annual leave and the other was covering the downtown office. He further stated that he took it upon himself to relieve Complainant so she could take a lunch around 2:00 p.m. Complainant asserted that she was not aware of any other employees treated more favorably who worked for 11 hours and were given breaks. Complainant also stated that if she can work 11 hours then C2 can work alone on the days C3 was absent, and he would be alright for eight hours. Complainant also noted that there are relief clerks available. Complainant added that C3 has worked over 11 hours with no lunch or breaks. S1 stated that it is possible that employees were required to work overtime to cover vacancies at the two offices. He also stated he was not aware of any EEO protected activity for C2 or C3. Claim 5 - Investigative Interview Complainant stated that S2 conducted an investigative interview with her on December 10, 2020, regarding hitting the HazMat bypass button and clocking out early. Complainant asserted that she should not have been given an investigative interview because she has almost always left early and stated that she does not sit very well, and when she was finished closing the window every night, she goes home instead of just sitting there. She also maintained that it has never been a problem or discussed with her before. She further asserted that her EEO protected activity was a factor because of the way she has been treated over the years. In addition, she stated that her medical condition was a factor because “it had something to do with giving so many investigative interviews.” Claim 6 - LOW Complainant stated that another supervisor (S2) was the management official who issued her a LOW. Complainant noted that S2 had conducted the investigative interview with her on December 10, 2020, where she provided an explanation for her actions. She also stated that she disagreed with the LOW because she made very clear as to what was happening with the equipment at the Main Office, yet she received a LOW anyway. Complainant stated that her EEO protected activity was a factor because of the way she has been treated over the years. She also notes that she filed a grievance, and the LOW was dropped. Complainant also indicated that her medical conditions were a factor but did not specify how or why. The record evidence includes the LOW issued to Complainant on December 17, 2020, for failure to follow instructions when Complainant pressed the HazMat bypass button during a retail transaction. Grievance documentation indicated the LOW was removed from Complainant's file. 2022002025 6 Claim 7 - AWOL Complainant testified that S2 charged her with eight hours of AWOL on December 31, 2020. She acknowledged that she did not submit a PS Form 3971 or call in for the date. Complainant contended that she had communicated with S2 by text, and he responded: “[Station Manager] said we cannot do that" and that he would let her know. Complainant also asserted that S2 texted her “you are AWOL today, have a good New Year's.” Complainant asserted that she should not have been charged AWOL because she comes to work on time, does her job, and gets along with everyone. Complainant's TACS report for December 31, 2020, indicates Complainant was paid 8.00 hours of holiday pay. Claim 8 - Denied One-Click Lunch Complainant asserted that S2 sent her an email stating she was not allowed to take a one-click lunch and that she was the main reason they had to pay out for not taking lunches. Complainant also noted that on November 27, 2020, S1 allowed Complainant to take a one-click lunch, but then on January 25, 2021, he reversed that decision. Complainant asserted that the rules change from manager to manager. Complainant also stated that one-click lunches were used by all clerks at one time or another. Complainant also asserted that her EEO protected activity was a factor because of how she has been treated over the years. She also stated that her medical conditions were a factor because S2 was punishing her for having a one-click lunch. S2 responded that Complainant has been instructed on one-click lunches, as they have paid out Complainant for not taking lunches. S2 also stated that Complainant was advised that she was required to take lunch unless management authorized no lunch in writing. The record contains communication dated January 25, 2021, from S2 to Complainant which states that Complainant was to take a full lunch, a one-click lunch is not authorized, and Complainant cannot leave whenever she wants. S2 indicated this was his final notice and further action will be taken if needed. Claim 9 - Reporting to North Park on Saturdays Complainant contended that S2 told her to report to North Park on Saturdays so that C2 could take a lunch because he was alone there on Saturdays. Complainant disagreed with this and stated that she works alone on Saturdays, and she works alone for 11 hours on the days C3 was gone. Complainant contended if she could do it 11 hours, C2 could work for eight hours. She also stated that North Park has window clerks to relieve C2. Complainant noted that a retired employee (R1),4 used to voluntarily go to North Park every so often as needed. 4 Complainant stated that she took over R1’s job after she retired. 2022002025 7 Complainant asserted that her age was a factor but does not state how. She also asserts that her EEO protected activity was a factor because her EEO activity has almost everything to do with the way she has been treated over the years. She also believed that her medical condition was a factor because “[S2] knows that it is upsetting Complainant that he wants to pull me back into the hostile work environment." 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 Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry 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 Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions as more fully discussed above. For example, regarding Claim 1, Agency officials stated that employees were expected to take their lunches and breaks as designated unless otherwise coordinated with management. Agency officials stressed that Complainant was not denied any hours. As to Claim 4, Agency officials affirmed that clerks were required to perform their assigned tasks and, if Complainant was needed at the Main Office or North Park Office, she was sent where needed. Agency officials could not recall if Complainant had to work alone or without a break but noted that C2 had no authority over Complainant’s lunch. 2022002025 8 With respect to Claim 5, Complainant was given an Investigative Interview because she continued to have issues with clock rings. As to Claim 6, Complainant was issued the LOW because she failed to follow supervisory instructions. Complainant pressed the HazMat bypass button on numerous occasions instead of having customers respond to the HazMat questions in violation of Agency policy. Regarding Claim 7, management denied that Complainant was charged with AWOL. The record indicates that Complainant was paid holiday pay on the day in question. As to Claim 8, management instructed Complainant to take her designated lunch breaks unless otherwise authorized by management. Complainant had failed to follow instructions; therefore, S2 sent her an email informing her of this requirement. Finally, with regard to Claim 9, Complainant was told to report to North Park on Saturdays because the window closed at noon, Complainant had no other work after 12:30 p.m., and the contract required employees to work eight hours. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). As Complainant withdrew her request for a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Hostile Work Environment Finally, to the extent that Complainant contends that she was subjected to a hostile work environment with respect to the matters herein, the Commission finds that a finding of a hostile work environment is precluded by the Commission's determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2022002025 9 Therefore, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. 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 (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. 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. 2022002025 10 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. 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 31, 2023 Date