[Redacted], Anna C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022001817 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anna C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022001817 Hearing No. 420-2021-00216X Agency No. 4G-350-0072-21 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 January 12, 2022 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a probationary City Carrier Assistant (CCA), 01/CC, at the Childersburg Post Office located in Childersburg, Alabama. On March 10, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), and color (Black) when: (1) beginning on or about November 12, 2020, she was treated less favorably than her white co-workers, accused of being angry and hostile and subjected to personal attacks against her work ethic and character; (2) beginning on 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. 2022001817 2 or about November 12, 2020, she was not provided proper training; and (3) on January 7, 2021, she was issued a Letter of Termination during her probationary period. 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the decision. The instant appeal followed. FACTUAL BACKGROUND Complainant’s immediate supervisor was the Postmaster at the Childersburg Post Office (PM) (Caucasian, white, male). Prior to being hired at Childersburg, Complainant was a Temporary Carrier Assistant (TCA) at the Sylacauga Post Office, Alabama for one year and received all required Carrier training at that location. Complainant was hired as a CCA on November 7, 2020 and began working at Childersburg Post Office on November 12, 2020. PM testified that Complainant was provided all District-level training after she was hired. This training was initialed in the training book by her trainer (CCA1) who was an experienced CCA. A full-time Rural Carrier (RCA1) also provided training to Complainant. Further, Complainant repeatedly stated to her trainer that she already knew all the tasks that she was being trained due to being a TCA at the Sylacauga Post Office. Complainant refused to sign for any of her received training during this time. On November 28, 2020, CCA1 approached Complainant about her work trays being disorderly at Complainant’s workstation, which created a safety hazard. Rather than properly organizing them, Complainant reacted in a hostile manner towards CCA1. Prior to Complainant’s 30-day evaluation, PM sent her a text message reminding her that she needed to obtain his permission before she accepted work requests from other facilities. PM was responsible for tracking Complainant’s hours and needed to know when and where Complainant was working. Further, PM needed to approve any non-scheduled work away from Childersburg Post Office because Complainant may be needed at Childersburg, which had priority over other facilities. Complainant responded to PM’s text by stating that if contacted directly by another facility, she will work at that facility. On December 8, 2020, Complainant was given her 30-day evaluation, in which PM noted several deficiencies. Complainant was marked “Unsatisfactory” in the areas of Work Quantity, Work Quality, Work Relations, Work Methods, and Personal Conduct. PM stated that Complainant responded to him with a raised voice and short, defensive answers that could be heard in the rest of the office. Complainant initialed the evaluation form. According to PM, on December 29, 2020, while Complainant was delivering mail, an elderly African American female customer (C1) in a wheelchair called for Complainant’s attention from her front door and asked if Complainant could bring the mail to her door. 2022001817 3 According to the complaint made by C1, Complainant, in a hostile voice, asked her if she had a key to her box, and C1 said yes. Complainant then told C1 that she could come to the box and get it. According to C1, Complainant then got into her vehicle, slammed the door, and sped off. C1 informed PM of this incident and told him that she was afraid that Complainant would retaliate if PM took any action towards Complainant. On January 7, 2021, Complainant was issued a Notice of Termination during her probationary period. PM asserted that the conditions outlined in the 30-day evaluation did not improve. Further, PM stated that Complainant was hostile with colleagues and management when given instructions and training and had hostile contact with a delivery customer which the customer reported to the office. Complainant denied the bases for her termination. Complainant identified two comparative employees (CCA1 and RCA2) who she asserts were treated more favorably. Complainant asserted that CCA1 (Caucasian, female) was not disciplined at all for mis-delivery of mail, Complainant also claimed that RCA2 (Caucasian, female) was involved in a serious motor vehicle accident on a scheduled workday while delivering mail on her delivery route. At the time of the accident, RCA2 had not completed her 90-day probationary period and received a verbal warning from PM, while Complainant was terminated for less serious infractions. Moreover, Complainant asserted that RCA2’s name was placed on the re-hire eligibility list following her resignation whereas Complainant’s name was placed on the “not eligible for re- hire list.” Agency management argued that CCA1 and RCA2 were not similarly situated comparison employees. Specifically, the Agency noted that CCA1 misdelivered a piece of mail to a postal customer when she was training, and that the customer confronted her about it. However, Complainant was terminated after PM received complaints of mis-delivery from Complainant’s route almost daily. In addition, PM testified that RCA2 was a good worker and a team player. PM also testified that RCA2 worked for the Agency for years, and voluntarily resigned in good standing for personal reasons. When she wanted to come back, she was rehired, but had to go through probation again. PM further testified that although unfortunate, RCA2’s accident, given her previous experience and good standing, was not a terminable offence. In addition, PM noted that RCA2 and Complainant worked two completely different crafts. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2022001817 4 In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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). In this case, assuming arguendo that Complainant established a prima facie case of discrimination, we find that Agency management articulated legitimate, non-discriminatory reasons for its actions. More specifically, regarding training, the Agency provided evidence demonstrating that Complainant was provided the required training. In addition, Complainant had previously worked as a TCA and was fully trained then as well. With respect to her claim that she was treated less favorably, accused of being hostile, and subjected to attacks on her work ethic, the record supports that Agency officials informed Complainant of her performance deficiencies based on observations and data from Delivery Operations Information System. Agency officials affirmed that Complainant reacted to these situations in a raised voice or negative manner. Finally, Complainant was terminated during her probationary period because she did not improve in the identified areas in her 30-day evaluation, she was hostile to co- workers and management, and she displayed insubordinate behavior. 2022001817 5 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). The Commission finds no 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 animus. Complainant failed to carry this burden. Aside from conclusory statements and her subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes and tribulations. We note that the antidiscrimination statutes are not civility codes. Rather, they forbid “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). As a result, the Commission finds that Complainant has not established that she was subjected to discrimination or a hostile work environment as alleged. 2022001817 6 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s 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. 2022001817 7 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 March 15, 2023 Date