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

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2021003830 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julie J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003830 Agency No. 4C-150-0013-21 DECISION On June 15, 2021, 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 May 27, 2021 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. 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 Sales and Service/Distribution Associate, 06/CC, at the Agency’s Grapeville Post Office in Grapeville, Pennsylvania. On February 16, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) and in reprisal for prior protected EEO activity when, beginning around December 2020, Complainant was forced to work overtime.2 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. 2 The Agency dismissed two additional claims for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission will consider these claims as background evidence in support of Complainant’s hostile work environment claim. 2021003830 2 On December 1, 2020, Complainant and a clerk at the Penn Post Office received an email from their supervisor (Supervisor) that they both had to come into the Jeannette Post Office to help with the distribution of mail. They were informed to arrive at 6:00 a.m. and to remain until they were released to their respective post offices. This was a direct order from the Manager, Post Office Operations (Manager). The email stated that management was going to start switching off Sundays with Complainant and the clerk, and to arrive at the Jeannette Post Office at 5:00 a.m. to scan in packages. Complainant was not on the Overtime Desired List, but starting December 2, 2020, the Postmaster, Supervisor, and Manager required Complainant to work overtime. Complainant stated that as a non-traditional, full-time employee working less than eight hours a day, she was not permitted to be on the Overtime Desired List. Complainant alleged the Agency forced her to work overtime due to her sex and because she filed a union grievance. Postmaster explained the Jeannette Post Office had a shortage of clerks. One clerk was injured and was not able to work and he had been trying to hire another clerk since September 2020. There were only two clerks to distribute mail during peak season and with the COVID-19 pandemic, the volume was significantly higher. He tried to get help from the other post offices, but employee availability was low due to the pandemic. Postmaster said he had one clerk on the overtime desired list and another clerk had childcare issues and was off for about two weeks in December 2020. After speaking with Manager regarding the staffing issues, Manager told S1 and Postmaster to force overtime on the employees. Management stated that multiple employees from all crafts were forced to work overtime. Article 3.F of the National Agreement between the American Postal Workers Union and the Agency mandates that the Agency has the exclusive right, subject to provisions of the Agreement and applicant laws and regulations, “To take whatever actions necessary to carry out its mission in emergency situations, i.e., unforeseen circumstance or a combination of circumstances which calls for immediate actions in a situation which is not expected to be of a recurring nature.” While Complainant was not on the Overtime Desired List, as a non-traditional full-time employee, Complainant could be required to work overtime in order to get mail delivered given the emergency situation at the Jeannette Post Office. 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). In accordance with Complainant’s request, 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 show that Agency management discriminated or retaliated against her as alleged. The instant appeal followed. 2021003830 3 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima facie case of discrimination and reprisal, the Commission finds that the Agency articulated legitimate, non-discriminatory reasons for its actions, as discussed above. The Agency had an emergency situation due to labor shortages and significantly higher mail volume due to the pandemic and holiday peak season. Complainant was required to work overtime due to the emergency situation at the Jeannette Post Office in accordance with the collective bargaining agreement. Aside from conclusory statements and her subjective belief, we find that Complainant has not demonstrated that the Agency's articulated reasons for its actions were a pretext for discrimination or reprisal. Moreover, to the extent Complainant claims that she was subjected to a hostile work environment, the Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Even assuming the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show, as discussed above, that the Agency's actions were based on discriminatory or animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace tribulations. 2021003830 4 As a result, the Commission finds that Complainant was not 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, because a preponderance of the record evidence does not establish that discrimination occurred. 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. 2021003830 5 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 September 28, 2022 Date