[Redacted], Alycia R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022001897 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alycia R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001897 Agency No. 1C-221-0007-21 DECISION On February 14, 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 January 13, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, P-07, at the Agency’s Northern Virginia Processing & Distribution Center facility in Merrifield, Virginia. On August 18, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and harassed her on the bases of race (white), sex (female), and reprisal when: 1. on March 31, 2021, she was given a Pre-Disciplinary Interview and subsequently issued a Letter of Warning on April 6, 2021; and 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. 2022001897 2 2. on a date to be specified, she was pressured to file light duty forms and forced to use sick and annual leave. The Agency accepted the complaint and conducted an investigation that produced the following pertinent facts. Claim 1 Complainant attested that, on March 31, 2021, she had a Pre-Disciplinary Interview and was subsequently given, on April 8, 2021, a Letter of Warning for Failure to Follow Instructions (“Letter of Warning”), dated April 6, 2021. Report of Investigation (ROI) at 61; 63; see also id. at 72-73. She stated that she was given this Letter of Warning for parking in an unauthorized lot and because she must park in the appropriate parking lot. Id. at 63. According to Complainant, Supervisor of Distribution Operations (“Supervisor”) was the management official responsible for this allegation, while Senior Manager of Distribution Operations (“Senior Manager”) concurred. Id. at 62. Complainant maintained that she parked in the lot because she was being harassed by a co- worker and management did not take prompt and effective corrective action to stop the unwelcome conduct. ROI at 62-63. She further stated that she disagreed with this decision by Supervisor and Senior Manager because management did not exercise reasonable care to prevent and correct any harassing behavior or to avoid harm. Id. at 63. Complainant also declared that she was subjected to an investigative interview by Supervisor and Senior Manager on March 31, 2021. ROI at 61-62. She said Supervisor and Senior Manager subjected her to the interview because the conduct she had complained of was not unwelcome and the complained-of harassment not sufficiently severe. Id. Complainant named four comparators who she said were all under Senior Manager and were treated better than she was: Comparator 1 (Mail Processing Clerk, PS-06; race unknown; male; no prior EEO activity); Comparator 2 (Mail Processing Clerk, PS-06; race unknown; female; prior EEO activity); Comparator 3 (Mail Handler Equipment Operator, PS-05; race unknown; male; no prior EEO activity); and Comparator 4 (Lead Mail Processing Clerk, P-07; black; male; prior EEO activity). ROI at 64; see also id. at 202-17. Complainant believed her race was a factor in this action because when a white employee complains, nothing is done. ROI at 64. Complainant thought her sex was a factor because black male employees like Comparator 4 are never the subject of a Letter of Warning. Id. Complainant believed that her EEO activity was a factor because Comparator 5 (General Clerk, B-06; female; black; no prior EEO activity) and Comparator 6 (Mail Processing Clerk, PS-06; female; black; no prior EEO activity) parked in the same parking lot that Complainant did. ROI at 64: see also id. at 202-17. 2022001897 3 Complainant also named three more comparators who were allowed to park in the supervisors’ parking lot where she was instructed not to park. They are Comparator 7 (Mail Handler Equipment Operator, P-05; race unknown; male; no prior EEO activity); Comparator 8 (General Expeditor, PS-07; white; male; no prior EEO activity); and Comparator 9 (only first name given; non-management; no other information in record). ROI at 70; see also id. at 202-17. Supervisor attested that he was Complainant’s supervisor and gave her the Pre-Disciplinary Interview and the April 6, 2021, Letter of Warning. ROI at 102. This was confirmed by Senior Manager, who said he was not involved but the matter was brought to his attention. Id. at 125- 26. Supervisor said he issued the discipline because Complainant was instructed not to park in the parking lot and failed to follow instructions. ROI at 103. Supervisor attested Comparators 1, 3, 4, and 7 were not under his supervision and he had no knowledge of them. ROI at 104-05; 115. As for Comparators 2 and 6, Supervisor said there was no need to issue either of them discipline for failure to follow instructions. Id. at 104; 106. Senior Manager attested that, regarding the Comparators who were allowed to park in the supervisors’ parking lot, Comparators 5 and 8 had medical issues and Comparator 6 had injured her back on the job. ROI at 137-39. The Agency’s Employee and Labor Relations Manual 665.15 states that: “Employees must obey the instructions of their supervisors. If an employee has reason to question the propriety of a supervisor’s order, the individual must nevertheless carry out the order and may immediately file a protest in writing to the official in charge of the installation or may appeal through official channels.” ROI at 226. Claim 2 Complainant asserted that, on August 17, 2021, she was pressured to file light duty forms by Supervisor. ROI at 65. Complainant believed she was pressured to file light duty forms because management failed to give her the updated forms for her case. ROI at 65. She clarified that management tried to take away the modified job she was given by the Department of Labor, and she had to appeal her case by filing the appropriate forms. Id. Complainant further attested that she was forced to use sick and annual leave on January 30 - February 19, 2021; February 3, 2021; February 5-7, 2021; February 24, 2021; March 31, 2021; and April 1 - 4, 2021. ROI at 66. She declared that the responsible management officials were Senior Manager and Senior Plant Manager. Id. 2022001897 4 According to Complainant, she had to use sick and annual leave due to a hostile work environment created by the co-worker she alleged harassed her, which management did not correct or prevent. ROI at 66. Complainant opined that management also did not use reasonable care to avoid harm, and she was forced to use sick and annual leave because of “the assaults and punctured tires and drug[] use in the employees[’] parking lot[,] . . . [which made her] fe[el] anxious[,] stress[ed,] [and] threatened.” Id. Complainant believed race was a factor because she is white and the responsible management officials are not. ROI at 66. She believed sex was a factor because she’s white and female, but other employees on light duty are non-white and do not get harassed. Id. at 67. Lastly, Complainant believed her EEO activity was a factor because the pattern of practice at her facility was to disregard the EEO process. Id. Supervisor attested that Complainant was instructed to file her light duty forms because the Department of Labor closed her claim on November 1, 2019. ROI at 107. He stated the last medical information received on Complainant was in May 2021. Id. Supervisor stated, however, that he had no knowledge of management failing to give Complainant light duty forms or pressuring her to file light duty forms. ROI at 107. Rather, he said, Complainant’s claim was denied by the Department of Labor and she needed to provide documentation. Id. As to Complainant’s allegation that she had to use sick and annual leave on the afore-cited dates, Supervisor said that those were the days she was told not to park in the supervisors’ parking lot, and she chose to go home. ROI at 108-09. He emphasized that Complainant was not forced to use sick or annual leave. Id. Both Senior Manager and Senior Plant Manager attested that they had no direct knowledge of the events in this claim. Id. at 130-33; 147-51. The record contains six Requests for Notification of Absence (“Notification”) forms, one each for the periods January 30 - 31, 2021; February 3 - 4, 2021; February 4 - 5, 2021; February 5 - 7, 2021; and February 24 - 25, 2021. ROI at 77-81. On each of the aforementioned Notification forms, “Parking” or “Waiting parking approval” is written in the Remarks section. Id. The record also contains a Notification form for March 18 - 19, 2021, which notes “Personal Emergency; Household Emergency” in the Remarks section, and one for March 31 - April 1, 2021, in which the Remarks section contains: “no [l]unch - stress/parking/hostile environment[.]” ROI at 82-83. Lastly, on the Notification form for April 1 - 4, 2021, the Remarks section states: “Stress Parking Hostile work environment[.]” Id. at 84. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 2022001897 5 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 as alleged. The instant appeal followed. 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 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 A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2022001897 6 Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, in which Complainant alleges that, on March 31, 2021, she was given a Pre- Disciplinary Interview and subsequently issued a Letter of Warning, the Agency explained that it issued the discipline because Complainant was instructed not to park in the supervisors’ parking lot and failed to follow instructions. Management pointed out that not following instructions was against Agency policy. Of the comparators who were under Supervisor’s direct supervision, Comparator 2 and Comparator 6, Supervisor said there was no need to issue either of them discipline for failure to follow instructions. Furthermore, Senior Manager attested that, regarding Comparators being allowed to park in the supervisors’ parking lot, Comparators 5 and 8 had medical issues and Comparator 6 had injured her back on the job. Regarding claim 2, in which Complainant alleges that on various dates, she was pressured to file light duty forms and forced to use sick and annual leave, the Agency submitted that it did not fail to give Complainant light duty forms or pressure her to file them. Rather, it explained, the issue was that Complainant’s claim was denied by the Department of Labor and she needed to provide documentation. The Agency clarified that, when Complainant was told not to park in the supervisors’ parking lot, she chose to go home. According to the Agency, Complainant was not forced to use sick or annual leave. Instead, it maintained, using sick or annual leave on those dates was Complainant’s choice. Because the Agency articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency’s reason was a pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007). Upon review of the record in its entirety, we find that Complainant has not shown by a preponderance of the evidence that the Agency’s explanation was pretext, designed to conceal discriminatory or retaliatory animus. Hostile Work Environment Finally, to the extent that Complainant is alleging that she was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 2022001897 7 1994). Complainant’s harassment claim is precluded based on the Commission’s finding that she 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. 01932923 (Sept. 21, 2000). 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). 2022001897 8 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. 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