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

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021001993 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021001993 Hearing No. 540-2019-00299X Agency No. 4E-852-0146-18 DECISION On February 7, 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 January 5, 2021 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales, Services/Distribution Associate, PS-6, at the Agency’s Post Office in Paguate, New Mexico. On September 5, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (59) and reprisal for prior protected EEO activity. Complainant filed subsequent amendments to the complaint. The Agency framed the claims as follows: 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. 2021001993 2 1. On August 14, 15, and 16, 2018, Complainant’s supervisor would not allow her to utilize her PTO and accused her of being AWOL; 2. On multiple dates to be specified, members of management threatened Complainant with the loss of her job, yelled at her disrespectfully and accused her of insubordination and lying; 3. On May 21 and 22, 2018, Complainant’s supervisor refused to help her with accessing the DMS and removed her access to Outlook, eBuy, Toolkit and the FDB system; 4. Complainant’s supervisor has not paid Complainant for her days off from August 14 - 16, 2018; 5. During an unspecified four (4) month time period management performed numerous audits on Complainant; 6. With an unspecified three (3) month time period Complainant had two fact findings, and was issued discipline, including but not limited to a Letter of Warning and a 7-Day Suspension on the same day; 7. On January 2, 2019, Complainant was notified that her request for leave for a medical appointment was denied; and 8. On February 7, 2019, Complainant was issued a Notice of Removal. 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, but the AJ denied the hearing request on the grounds that Complainant failed to respond to the AJ’s orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that management officials articulated legitimate nondiscriminatory reasons for their actions. Regarding Complainant not being paid for her days off (claim 4), the FAD found that her supervisor (“Supervisor”) (age 44) charged Complainant with being Absent Without Leave (AWOL) and hence she was not paid. With respect to the Letter of Warning and the 14-day suspension (claim 6), Supervisor explained that the Letter of Warning was issued due to unacceptable/unprofessional conduct and the suspension was issued “for the more egregious charge of AWOL.” According to Supervisor, Complainant was denied sick leave for a medical appointment (claim 7) because Complainant submitted the request after the work schedule had been posted and staffing shortage meant that he could not spare Complainant on that date. 2021001993 3 With regard to the Notice of Removal (claim 8), Supervisor stated it was issued due to Unacceptable Conduct including Complainant spreading rumors about the Post Office to customers, engaging in a verbal confrontation with a co-worker, and allowing her daughter to perform yard work on Postal property. The FAD further found that Complainant failed to establish that the Agency’s articulated reasons were pretextual. Finally, with respect to harassment, the FAD concluded that the actions complained of were insufficiently severe or pervasive to constitute harassment. 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 Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test 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 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 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. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden 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 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). 2021001993 4 Here, the Agency articulated legitimate nondiscriminatory reasons for its actions. With regard to Complainant not being paid for her days off on August 14-16, 2018, Supervisor averred that Complainant’s leave request for the dates in question had been denied because another employee had already selected those dates. When Complainant did not show up for work on those dates she was considered AWOL and, consequently, was not paid. The September 10, 2018 Letter of Warning stated that it was being issued because of “theft, unacceptable conduct, unprofessional conduct, disrespect towards a supervisor, [and] failure to follow instructions.” Specifically, the document stated that on August 17, 2018 Complainant had called Supervisor a liar and, in late July 2018, Complainant had “misused postal products.” According to Supervisor, Complainant had used Agency postage paid envelopes with certified mail and return receipts to send him correspondence, so that she would have proof that she had sent the correspondence, which Supervisor deemed to be “tantamount to theft.” As for the 14-day suspension, the “Notice of Suspension of 30 Days or Less” stated that the action was being taken due to “AWOL Absence Without Leave, Failure to report to work as scheduled” in reference to the August 14-16, 2018 incident. With regard to the denial of Complainant’s January 3, 2019 sick leave request, Supervisor attested that Complainant submitted the request “after the schedule was posted” and that with just four employees, one of whom had been assigned to work at another post office during the period in question, he did not have enough staff to cover Complainant’s requested absence. In her affidavit, Complainant also referenced another denial on January 30, 2019. However, according to Supervisor, Complainant had not submitted a leave request for that date. Finally, Notice of Removal itself stated that the action was based on “Unacceptable Conduct” and listed three incidents: “spreading rumors about the post office to customers”, wherein Complainant allegedly falsely told customers that because the Postmaster had refused to send stamps to the facility they would need to go elsewhere for stamps and falsely told customers that the Postmaster had told her to lie to customers; “verbal confrontation with coworker” wherein Complainant allegedly was “yelling and screaming” on the phone with a coworker; and “allowing your daughter to perform work on postal property” wherein Complainant allegedly had her daughter, who was not an Agency employee, clean the property around the facility even though Complainant was allocated two hours to complete the task herself. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to not being paid for her days off and the subsequent 14-day suspension for being AWOL, Complainant averred that she had originally submitted a leave slip for those dates, and the request had been approved by Supervisor, but that two weeks before she was due to take the leave Supervisor told her that he would “try to work for her during the requested time off”. 2021001993 5 According to Complainant, “it sounded like he would have a problem working so I told him I would take [one less day of leave] if that would help”, because another employee was on FMLA leave the entire month of August. Consequently, Complainant submitted a second leave request, for only two consecutive days in August, only for Supervisor to deny the updated request. Complainant averred that she consulted with the union president who told her that since Supervisor had approved the original request made in February, he would have to honor it. Complainant further averred that Supervisor could have charged her with Leave Without Pay (LWOP), which is a less serious offense than being AWOL. In support of her claim, Complainant submitted a copy of a leave slip dated February 28, 2018 requesting leave from August 14 - 16, 2018. The box “approved” is marked with an X, but we note that the line for the Supervisor’s approval is unsigned. Therefore, the record does not support Complainant’s assertion that she had received approval for the requested leave at issue. With regard to the Letter of Warning, Complainant contended that she was unaware that she could not use postage paid envelopes to send internal mail. She also denied calling Supervisor a liar and displaying unprofessional or unacceptable conduct. As for the denial of sick leave on January 3, 2019, Complainant stated that she submitted the request the same day she learned of her medical appointment. Moreover, she asserted that despite Supervisor’s professed reason (i.e. no leave was going to be approved for the first two weeks of January because of a move to a new facility), her request still could have been approved because a coworker was available to work for her and Supervisor also could have covered for her. Complainant further averred that “when my daughter checked the mail on these days she stated some co-workers were not working so I would've had relief.” In addition, Complainant maintained that the office move did not occur until later that month and the leave should have been approved because it was for a medical appointment. With respect to the January 30, 2019 request, Complainant contended that Supervisor had verbally approved the request and that she had a recording of his verbal approval. Finally, regarding the Notice of Removal, Complainant denied the charges in the notice and argued that if Supervisor objected to Complainant’s daughter weeding outside the Post Office, he should have brought the matter to Complainant’s attention. Following a review of the record we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual, or that Agency officials harbored retaliatory motive or discriminatory animus towards Complainant’s protected bases. While Supervisor’s actions do appear harsh, Complainant’s evidence does not establish that the adverse actions were taken because of her age or her participation in protected EEO activity. While Complainant may believe that the actions were based on these factors, she has not submitted evidence establishing such causation by a preponderance of the evidence. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was : not paid for August 14 - 16, 2018; issued a Letter of Warning and a 14-day suspension; denied sick leave request for medical appointments; and 2021001993 6 issued a Notice of Removal, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that Complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Complainant alleges the following acts of harassment: threatened with the loss of her job; yelled at disrespectfully and accused of insubordination and lying; refused help with accessing the DMS and her access to Outlook, eBuy, Toolkit and the FOB system were removed; and subjected to numerous audits by management over a four month period. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, 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. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). 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.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id., see also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). 2021001993 7 Following a review of the record we find that Complainant has not shown that the actions alleged either involved or were based on her protected classes. Nor do we find the actions to be sufficiently severe or pervasive to alter the conditions of Complainant’s employment. Therefore, we find that Complainant has not shown that she was subjected to harassment under the law. Finally, we note on appeal that Complainant argues that the AJ erred in denying her hearing request. Specifically, she asserts that: Due to COVID-19, my opportunities to participate in the complaint process have been severely limited. The agency’s failure to recognize these hardships and accommodate my ability to participate in this process has compromised my due process rights. I reside on the Laguna Pueblo tribal reservation that has increased COVID-19 restrictions that limit my ability to use public resources to access the internet. Additionally, being a rural reservation, internet access is limited. The Laguna Pueblo government closed the Laguna Pueblo Library, which is my only resource on my reservation for internet and office needs. I was not able to access my email. Because of this, I missed the deadline to submit the necessary paperwork needed for the hearing that was supposed to take place. While we are not unsympathetic to the difficulties Complainant may have experienced trying to prosecute her claim during the height of the COVID-19 pandemic, we note that on appeal, Complainant has not shown how she was harmed by being denied a hearing. We note in this regard that Complainant was still able to present her evidence during the Agency investigation and had the opportunity to present additional evidence on appeal. We further note that pursuant to 29 C.F.R. § 1614.109(e), AJs have the discretion to deny hearing requests for various reasons and we find no basis to conclude that the AJ abused his or her discretion in this regard. Therefore, wee deny Complainant’s request to have this matter remanded for a hearing. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown the discrimination occurred as alleged. The Agency’s decision is AFFIRMED. 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. 2021001993 8 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. 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. 2021001993 9 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 20, 2022 Date