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

Equal Employment Opportunity Commission

Sep 30, 2022

Appeal No. 2021004893 (E.E.O.C. Sep. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabelle G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004893 Hearing No. 520-2020-00549X Agency No. 4B-100-0057-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 6, 2021, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor, EAS-17, at the Agency’s Manhattanville Station in New York, New York. On February 24, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment based on sex (female) and in reprisal for prior protected EEO activity when: 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. 2021004893 2 1. On or about January 23, 2020, Complainant was issued a Notice of Proposed Letter of Warning in lieu of a 14 Day Time Off Suspension for Disrespect towards Manager Customer Services Operations (Area Manager)/Failure to Follow Instructions; and 2. On unspecified dates, Complainant was constantly being bullied, yelled at, subjected to harassment and held to a higher level of expectations than the other male supervisors. Complainant does not dispute the framing of the complaint. 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 requested a hearing. After Complainant failed to file an opposition, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. The AJ found that Complainant failed to show she was harassed based on sex or reprisal. Regarding claim 1, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for issuing the Proposed Letter of Warning (LOW) that Complainant failed to rebut. Therefore, the AJ reasoned, that action could not constitute harassment because it was not based on discrimination or reprisal. The AJ found that the Agency issued the LOW because of an interaction between Complainant and Area Manager as well as Complainant’s failure to follow Area Manager’s directives regarding required communication courses. On or around January 11, 2020, Area Manager visited the Manhattanville Station to distribute walkie-talkies to supervisors, including Complainant. Complainant refused to take the walkie- talkie from Area Manager, walked away, and yelled for Area Manager to stop following her. She also told Area Manager that Complainant “did not have to listen to her because she was not her manager.” Complainant then told other employees present that Area Manager was harassing her. Area Manager submitted a factual statement to the Postmaster, explaining what had occurred and why the walkie-talkies were necessary. To support her account, Complainant gathered statements from three clerks who witnessed the events. The witnesses wrote in their statements that Area Manager followed Complainant around, that her behavior made them uncomfortable, and that she acted in an unpleasant manner. None of the statements mentioned Complainant’s sex or prior EEO activity. Prior to this incident, on December 27, 2019, Area Manager emailed Complainant instructing her to complete two required communication training courses: Trust Building Through Effective Communication2 and Effective Team Communication. 2 Area Manager’s emails to Complainant and the LOW both refer to the course as “Team Building Training Effective Communication,” though this appears to be in error. 2021004893 3 Complainant was required to take the Effective Team Communication course as a result of several Dispute Resolution Team (DRT) decisions from 2018 that had found Complainant inappropriately communicated with subordinates, but she had not provided evidence to management or the union that she had done so. The other course was apparently requested by Agency leadership due to concerns about Complainant’s verbal exchanges with coworkers. On January 21, 2020, Area Manager sent Complainant another email, instructing Complainant that she had until the end of the day to complete the two required courses and send proof of completion. She also reminded Complainant that her communications must be professional at all times. Complainant responded by saying, “You, Area Manager, give instructions to Managers. I am not a Manager, therefore I will not be following instructions given by you” and accused Area Manager of disparate treatment based on sex, arguing that “[a]nother Supervisor here uses profane language[ ] to his employees. . . Will he be required to take these courses? Or just me?” Complainant had already completed the Effective Team Communication course on October 17, 2018, though Area Manager appeared to be unaware of this at the time, but Complainant did not complete the other course until February 7, 2020, after the LOW was issued. As a result of these incidents, Complainant was issued the LOW on January 23, 2020, for “Disrespect towards [Area Manager] and Failure to Follow Instructions.” The Postmaster upheld the LOW in a Letter of Decision issued on May 11, 2020. The AJ concluded that the record showed Complainant spoke in disrespectful terms to Area Manager in front of staff, refused to use the walkie-talkies, and had failed to follow instructions regarding various mandated communications courses. The AJ therefore found that the Agency’s actions in claim 1 were not based on Complainant’s sex or reprisal, and that Complainant had not alleged Area Manager or any other management officials made reference to her sex or prior EEO activity during these incidents. Regarding claim 2, the AJ determined that, in addition to the events described above, Complainant’s harassment allegations included that the Agency more heavily scrutinized customer service/retail operations-Complainant’s purview-rather than delivery operations, that the Manhattanville Station was more closely monitored, and that other management officials “harassed [her] over situations that [were] sometimes totally out of [her] control.” The AJ found that, even accepting Complainant’s allegations as true, the alleged events did not rise to the level of discriminatory or retaliatory harassment and were “routine work assignments and instructions.” The AJ also found the record failed to show that any of the alleged incidents of harassment were based on discriminatory or retaliatory animus. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when she or he 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 factfinder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 2021004893 4 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order implementing 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. (as revised, August 5, 2015) (providing that an AJ’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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 her favor. Complainant’s bare assertions on appeal disputing the Agency’s actions and motives, without supporting evidence, are insufficient to show that there is a genuine issue for a hearing. Upon careful review of the AJ’s decision and the evidence of record, including 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding no discrimination. 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. 2021004893 5 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. 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. 2021004893 6 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 September 30, 2022 Date