[Redacted], Kristie D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Jun 2, 2022

Appeal No. 2021001569 (E.E.O.C. Jun. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristie D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001569 Agency No. 1F-901-0041-20 DECISION On December 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 13, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Los Angeles Plant and Distribution Center in Los Angeles, California. On June 5, 2020, Complainant filed a formal complaint alleging that she was subjected to discrimination and harassment based on race (Asian), national origin (Filipino), sex (female), color (Brown), disability,2 age (born 1940), and in reprisal for prior EEO activity (three prior 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 Complainant appears to have had a medical condition involving both hands and wrists. Little detail of this condition is available. However, the Manager, Distribution Operations (“MDO”) 2021001569 2 EEO complaints - all responsible management officials in current complaint deny knowledge of these prior complaints) when: 1. On January 24, 2020, her job offer in Manual Flats was not honored; 2. In May 2020, while on Covid-19 leave, her request for a change of schedule was not granted; 3. On June 4, 2020, management interrupted her break and questioned her regarding working overtime; 4. On June 19, 2020, she was given instructions not to take her break at the table closest to her work unit; 5. On unspecified date(s), she was singled out and treated less favorable than other limited duty employees; 6. On unspecified date(s), she was yelled at, humiliated on the workroom floor and subjected to constant comments from management; 7. On unspecified date(s), she was constantly watched while on break or lunch and harassed when she was off the clock; 8. On an unspecified date in late June 2020, she was notified by another employee and a union steward that her detail/schedule change had been ended early; 9. On an unspecified date in late July 2020, Manager Distribution Operations passed by her work area multiple times and after dispatch, she criticized the pace of her work to a Supervisor while in her work area; and 10. On July 26, 2020, Manager Distribution Operations instructed her to push a hand trick to the front in violation of her medical restrictions. The EEO investigator noted that Complainant did not participate in the investigation of her complaint by completing requested affidavits. stated on June 20, 2020, Complainant provided her with her Offer of Modified Assignment (Limited Duty) dated March 20, 2010, which indicated that Complainant had a 20-pound lifting restriction. At that time, the Acting Manager, Distribution Operations (“A/MDO”) and the Supervisor Distribution Operations (“SDO”) were not aware of Complainant’s lifting restriction. We will presume for purposes of analysis only, as did the Agency, that Complainant is an individual with a disability. 2021001569 3 Therefore, the report of investigation only contained information from Complainant from her formal complaint and the related EEO counseling report. After the investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. However, Complainant did not request a hearing or a final agency decision. Thereafter, the Agency issued a final decision on September 25, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment: Claims 1, 2 and 9 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant alleged that on January 24, 2020, her job offer in Manual Flats was not honored. Specifically, Complainant claimed that the she was instructed by the Manager, Distribution Operations (“MDO”) to work in the Opening Unit. However, the evidence of record shows that Complainant was indeed assigned to the Manual Flats. Management witnesses acknowledge that Complainant was sent to the Opening Unit and Manual Priority for just one day: January 24, 2020. 2021001569 4 The Agency found that this unit had too much mail and required assistance, and Unit Supervisors were therefore instructed to send employees there. Again, the Agency emphasized that due to the exigent needs of the workplace, Complainant’s assignment was for one day alone. Regarding clam 2, Complainant claimed that in May 2020, while on Covid-19 leave, her request for a change of schedule was not granted. The record reflects that Complainant’s physician signed a Medical Absence Report dated April 22, 2020 which indicated that Complainant had been off from work since March 17, 2020 because she was at high risk for Covid-19 due to medical reasons. Further, the physician stated that Complainant could return to work on June 1, 2020. A review of the Time and Attendance Collection System (TACS) records from May 31, 2020 through August 5, 2020, indicated that Complainant returned to work on June 3, 2020, and she had worked from June 3, 2020 to August 2020. The relevant Agency officials (the Acting Manager of Distribution Operations, and the MDO) both indicated that they were unaware of any requested schedule change in May 2020. Regarding claim 9, Complainant claimed that in late July 2020, MDO (Asian, Filipino, female, brown, 58 years old) passed by her work area multiple times and, after dispatch, criticized the pace of her work to a supervisor while in her work area. MDO stated that on the day in question, she and a supervisor were walking to monitor the manual cases operation and which type of mail can be rerun back to the machines. She also noted that due to the heavy delay on hand volume, she was speaking to her supervisor to meet her manual case employee what their expectation is to meet clearance and dispatch in a timely manner. MDO acknowledged walking by Complainant’s cases several times but did not discuss her work pace. Moreover, MDO stated that she tends to be out in the unit, meeting 2 or 3 times a day, assisting on clearing the docks, and reporting to the other building. For these three claims, beyond her bare assertions, Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons for the disputed actions proffered by management witnesses were actually a pretext designed to mask the true discriminatory or retaliatory motivation. Harassment/Hostile Work Environment: Claims 3 - 8 and 10 Complainant has also alleged that Agency management created a discriminatory hostile work environment. 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 her protected bases - in this case, her race, national origin, sex, color, disability, age and 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). 2021001569 5 Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, national origin, sex, color, disability, age or prior protected activity. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Regarding claim 3, Complainant asserted that on June 4, 2020, management interrupted her break and questioned her regarding working overtime. The Acting Manager, Distribution Operations (“A/MDO”) (Asian, Filipino, female, brown, 54 years old) asked Complainant when she was at her case and not when she was taking a break. She stated she did not realize that Complainant was on break and asked her about her overtime and who authorized her overtime. Regarding claim 4, Complainant alleged that on June 19, 2020, she was given instructions not to take her break at the table closest to her work unit. MDO stated that she does not recall this incident. Regarding claim 5, Complainant alleged that on unspecified date(s), she was singled out and treated less favorable than other limited duty employees. MDO asserted that management did not single Complainant and that she was not treated less favorably that other Limited-Duty employees. In addition, the A/MDO stated that she had not singled out Complainant. Regarding claim 6. Complainant claimed that on unspecified date(s), she was yelled at, humiliated on the workroom floor and subjected to constant comments from management. The A/MDO asserted that she never made humiliating comments to Complainant or yelling at Complainant. Regarding claim 7, Complainant alleged that on unspecified date(s), she was constantly watched while on break or lunch and harassed when she was off the clock. The A/MDO stated that she does not agree with Complainant’s allegation and does not know what she is referring to. Regarding claim 8, Complainant asserted that on an unspecified date in late June 2020, she was notified by another employee and a union steward that her detail/schedule change had been ended early. MDO asserted that she did not discuss this matter with the Supervisor Distribution Operations. The Supervisory Distribution Operations (“SDO”) (Asian, Filipino, female, brown, 57 years old) stated that she did not discuss Complainant’s details/schedule changes with MDO. She noted that Complainant’s detail ended in the system and she was out of the office based medical reason from March 29, 2020 to June 2, 2020. SDO stated that when Complainant returned to work, she informed her that she needs to renew her detail because it had expired. SDO approved Complainant’s detail change from July 6, 2019 until December 6, 2019. 2021001569 6 Regarding claim 10, Complainant claimed that on July 26, 2020, MDO instructed her to push a hand truck to the front in violation of her medical restrictions but she does not recall the July 26, 2020 incident. Here, the evidence of record either does not establish that the disputed events occurred or, if they did, that Complainant proved, by a preponderance of the evidence, that discriminatory or retaliatory factors played any role in the incidents. We again note that Complainant chose not to participate in the investigation of her complaint, did not request a hearing, and submitted no arguments in support of her appeal. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation 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. 2021001569 7 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. The court has the sole discretion to grant or deny these types of requests. 2021001569 8 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 2, 2022 Date