[Redacted], Beatriz P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 9, 2022

Appeal No. 2021000659 (E.E.O.C. Jun. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beatriz P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000659 Agency No. 1K-276-0003-20 DECISION On October 2, 2020, 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 September 3, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Clerk at the Agency’s Processing and Distribution Center in Rocky Mount, North Carolina. On February 26, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety and depression) and in reprisal for prior protected EEO activity when: 1. Complainant was given a Pre-Disciplinary Interview (PDI) and Letter of Warning (LOW) for violating the Agency’s zero tolerance policy. 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. 2021000659 2 2. Management officials created a hostile situation on the workroom floor and subjected Complainant to verbal abuse. 3. A coworker filed a false police report against Complainant and management did nothing. 4. On January 1, 2020, a management official informed Complainant that she would not be included in safety and automation meetings. 5. On February 11, 2020; February 27, 2020 and other dates to be specified Complainant’s coworkers verbally threatened her, invaded her personal space and disrespected her, and management took no action. The Agency accepted the complaint and conducted an investigation2 which produced the following pertinent facts. Claims (1), (2), and (5) According to Complainant, her supervisor (S1) was aware of her anxiety and depression and placed her in hostile situations on the workroom floor, causing her anxiety to flare up. Further, Complainant alleged that two coworkers came into her personal space, on two separate occasions, and disrespected her while S1 “stood back and did nothing.” Complainant also alleged that, after she filed her EEO complaint, S1 was in “retaliation mode” and that “he would forever harass” her. S1 denied ever placing Complainant in a hostile situation. S1 testified that Complainant’s job entails working as part of a team where she rotates her duties with her coworkers, but Complainant “has never been able to work well with other employee[s].” S1 testified that on January 22, 2020, Complainant’s coworker (C1) informed him that Complainant was on her cell phone and refused to rotate with C1. According to S1, when he approached Complainant to ask her about C1’s claim, Complainant became very defensive and left her machine, without permission, to contact a Union representative. S1 stated that he gave Complainant a direct order, twice, to turn her machine off, but she walked away and directed profanities at him. Consequently, testified S1, he issued a PDI and LOW to Complainant for failure to follow direct orders, abandoning her work area, violating the Agency’s Cellular Telephone Usage Policy, and violating the Agency’s Zero Tolerance Policy. The record includes a copy of the Agency’s cellular telephone usage policy and Zero Tolerance Policy. The Agency’s Cellular Telephone Usage Policy states: 2 Complainant failed to provide an affidavit during the investigation. Information regarding Complainant’s allegations come from her formal complaint and related EEO counseling report. 2021000659 3 Personal cellular telephone usage is prohibited in all official postal work areas as it interferes with the employee’s ability to safely perform his or her duties and responsibilities. Use of cellphones, including Bluetooth earpieces or other similar devices is acceptable only while on official breaks or during mealtime. The Agency’s Zero Tolerance Policy states: There will be zero tolerance for acts or threats of violence in our workplace. Each and every act or threat of violence committed against other Postal employees or customers will elicit a prompt investigation of facts and an appropriate response to those findings. Acts or threats of violence include but are not limited to . . . any type of vulgar or inappropriate language that could lead to a hostile work environment. Complainant alleged that other employees were treated more favorably than she was with respect to the Zero Tolerance Policy. She also alleged that she was made a “target” at work and isolated from her peers. Claims (3) and (4) According to Complainant, her coworker (C2) targeted her by filing a false police report in an attempt to defame her character and management did nothing to C2. Instead, S1 informed Complainant she was excluded from safety and automation meetings. S1 attested that he held an office meeting on January 1, 2020 and told Complainant not to attend because C2 had filed a restraining order against Complainant. S1 he wanted to “make sure no problems occurred during the meeting.” He also told Complainant, stated S1, that he would meet with her later to share what happened at the initial meeting, but Complainant did not show up to their meeting. S1 denied that the January 1, 2020 meeting involved a safety talk and stated that the meeting concerned work performance in the automation unit. S1 reiterated that he did not want Complainant and S1 in the office at the same time because he did not want to give the impression that he was creating a hostile environment. 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). 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. 2021000659 4 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 Claims of discriminatory or retaliatory disparate treatment are reviewed 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. A complainant may do so by presenting facts which, 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 Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs 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. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 252-5 3; 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. 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, 713-714 (1983). Assuming, arguendo, that Complainant established a prima facie case of disability discrimination or unlawful retaliation, the Agency management witnesses articulated legitimate, nondiscriminatory reasons justifying the issuance of the PDI and LOW. 2021000659 5 These officials explained that Complainant was given the disciplinary actions as a result of failing to follow a direct order twice, abandoning her work area, violating the Agency’s Cellular Telephone Usage Policy, and violating the Agency’s Zero Tolerance Policy. Despite Complainant’s assertions to the contrary, there is no evidence that the Agency treated other employees more favorably with respect to taking disciplinary actions for violations of Agency policies. The record contains documentation showing at least three other employees were also issued a PDI and LOW, in 2019, for violating Agency’s Zero Tolerance Policy. Two of the three were issued the disciplinary actions for using profanity directed at Complainant. Since Complainant has not provided affidavit testimony or evidence supporting her version of the events, it cannot be inferred that she was treated less favorably because of her membership in a protected class. In addition, management has articulated a legitimate, nondiscriminatory reason for excluding Complainant from the January 2020 office meeting. Specifically, the evidence shows that C2 had filed a restraining order against Complainant and S1 believed it was best to keep the two separated. Further, according to S1, an alternative opportunity to share the meeting information with Complainant has offered. Complainant has not shown that the Agency’s proffered reasons were a pretext masking disability discrimination or unlawful retaliation. Harassment Claim In the instant case, Complainant has also alleged that S1 “stood back and did nothing” when her coworkers came into her personal space to disrespect her and that after she filed her EEO complaint S1 stated that “he would forever harass” her. In considering whether S1’s actions constitute harassment, in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” In other words, 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 - in this case, her disability or engagement in prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021000659 6 Here, Complainant has not provided supportive evidence establishing that the alleged events either occurred as alleged or that a nexus exists between the alleged incidents and her protected bases. Therefore, we find that Complainant has not met her burden in showing, by a preponderance of the evidence, that she was subjected to a discriminatory hostile work environment as alleged. See Thaddeus G. v. Dep’t of Agriculture, EEOC Appeal No. 0120142925 (March 11, 2016). 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). 2021000659 7 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 June 9, 2022 Date