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

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022000734 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maye M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000734 Hearing No. 520-2021-00228X Agency No. 4B-100-0143-20 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 October 21, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Services Supervisor, EAS 17, at the Agency’s Manhattanville Station in New York, New York. On September 22, 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. From June 30 to August 3, 2020, Complainant was subjected to four tour changes; 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. 2022000734 2 2. On June 9, 2020, Complainant’s manager (S1), Manager of Customer Services, did not intervene on her behalf after an employee’s disrespectful outburst towards her, and he ignored her July 1, 2020, request for a statement; 3. On July 24, 2020, Complainant was removed from her assignment and instructed to stay at the Morningside finance station; 4. On a date to be specified, Complainant was instructed to request T-time2 in the form of an email if she needed extra time to complete her daily tasks; 5. On July 29, 2020, S1 sent an email to Complainant and all higher management, accusing Complainant of arguing with another supervisor; 6. On a date to be specified, S1 took the keys to the government vehicle, and Complainant is unable to use it for official travel; 7. On August 12, 2020, a clerk became argumentative with Complainant, and S1 did not inform the clerk to follow Complainant’s instructions and instead patted the clerk on the shoulder; 8. On August 17, 2020, S1 sent an unprofessional email in an attempt to cause animosity with Complainant’s coworkers; 9. On August 27, 2020, S1 usurped Complainant’s supervisory authority by instructing one of her clerks to report an hour earlier than scheduled; 10. On September 2 and 3, 2020, S1 spoke negatively about Complainant to craft employees; 11. On or about September 2, 2020, Complainant’s personal information was left in the copier; 12. On September 5, 2020, Complainant was not allowed to work even though she reported for duty; and 13. On November 9, 2020, Complainant was issued a Proposed Letter of Warning in Lieu of a 14-Day Time-Off Suspension dated October 23, 2020. 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 object, 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 the Agency articulated legitimate, nondiscriminatory reasons for the challenged actions and that, for some claims, the record undermined Complainant’s allegations. The AJ therefore concluded that Complainant had failed to establish that any of the events were based on her sex or prior EEO activity. 2 The record indicates that T-time refers to overtime hours worked by management officials but paid at the same rate as their regular pay. 2022000734 3 Regarding claim 1, the AJ found that all supervisors working under S1 experienced temporary scheduling changes, as evidenced by emails he sent them, and that Complainant’s four tour changes, which required her to report to work at different times, were based on operational needs. Regarding claim 2, S1 did not recall witnessing the specific altercation between Complainant and her subordinate employee, but averred that Complainant was responsible for any necessary corrective action and therefore did not require a statement from S1 in order to discipline an employee. Regarding claim 3, the AJ found that Complainant was responsible for operations at both the Manhattanville Station and the Morningside finance station. S1 required her to be present at the Morningside station in order to monitor and address certain performance issues for those she supervised. Regarding claim 4, Complainant alleged she was required to request T-time in advance by email when other supervisors were not advised to follow this rule. The AJ found that, on the contrary, all supervisors were informed that they were required to request T-time in advance as well as the reason for the request, and S1 would forward any requests to the Postmaster for approval. The AJ also found that the record showed Complainant was never denied any requested T-time. Regarding claim 5, prior to the email in question, S1 and Complainant had exchanged several emails regarding S1’s requests for Complainant to provide him with certain reports. In her reply, Complainant did not provide them and instead questioned why she needed to provide them. On July 29, 2020, S1 sent an email to Complainant, copying several members of upper management to the email, in which he told her that he had given her instructions, had not received any copies from her, and that she consistently fails to follow instructions from her supervisors, citing to a portion of the employee manual. In the same email, S1 stated that he directed another supervisor he manages (Coworker) to conduct observations at the Manhatanville Station the day before and that Complainant had argued with Coworker over it. S1 avers that he based his email off of what Coworker had told him. There is no indication in the record that Complainant received any discipline for this incident or that Agency management took any action based on this email. Regarding claim 6, S1 took the keys of the government vehicle from Complainant’s possession because the car was assigned to the station manager and was not for Complainant’s sole use. During the times Complainant kept the keys, it prevented other staff from using the government car. When Complainant requested the keys, they were given to her for use of the vehicle, and the AJ found that Complainant was never denied the use of the government vehicle and was provided with the keys several times. After use, S1 would take the keys back from Complainant. Regarding claim 7, one of Complainant’s employees was disrespectful to Complainant after Complainant questioned her about when she would take lunch in front of S1 and another employee. 2022000734 4 Complainant felt that S1 did not intervene and that he “patted” the employee on the shoulder. S1 did not recall the specific incident, but he averred that he would not normally have any interaction with a “craft employee” who does not report to him. Regarding claim 8, prior to the email at issue, S1 had emailed one of the supervisors he managed and told the supervisor about his concerns regarding the supervisor’s conduct, concluding that though he respected the supervisor’s leadership, he (S1) wanted a more professional working relationship between them. S1 then forwarded that email to all of the supervisors he managed, including Complainant, indicating that these were his expectations for the whole team. Complainant was not singled out in any way. Regarding claim 9, S1 instructed one of Complainant’s clerks to report to work at the Morningside station by 7:00 A.M. This was due to customer complaints that the Morningside station was not opening on time as well as concerns related to the COVID-19 pandemic at the station. As a result, upper management directed that the station open early to allow customers to make purchases and reduce congestion. S1 avers that Complainant should have been aware of this initiative by Agency leadership. Regarding claim 10, the Complainant stated that on September 2, 2020, she overhead S1 refer to her as “annoying” to another employee and that he also made negative comments and called her names on September 3, 2020, though she did not specify what he said on that day. S1 averred he did not recall these incidents. Regarding claim 11, Complainant found her time and attendance records in the copier machine. Complainant stated in her affidavit that she believed Coworker had printed them. S1 questioned Coworker about it, who denied it at the time and in his affidavit, and S1 therefore assumed that Complainant had printed her own time and attendance records and left them in the machine, which she had done on several occasions before. Regarding claim 12, Complainant was scheduled for annual leave on September 5, 2020, but had reported to work anyway. S1, who had not expected Complainant to report, told her that he had not expected her in and that he thought she was on vacation. Complainant was allowed to work and was paid for a regular workday. Regarding claim 13, S1 issued Complainant a Notice of Proposed Letter of Warning (LOW), dated October 23, 2020, charging her with “Disrespect Towards Manager of Customer Services [S1].” The LOW stemmed from two incidents in October 2020. The first was regarding instructions S1 gave Complainant to complete various tasks. In response, according to the LOW, Complainant told S1 that she was “not going to do any of these things. Then [she] started calling [S1] names[,] stating, ‘You are a liar, deceitful, dishonest,’” and “‘I will take away your job, you leave the office; I will take away your job.’” As of the date the LOW was issued, Complainant had not completed two of the assigned tasks. The second incident was regarding S1’s instructions to Complainant to complete a retail cycle count for the period of October 17 through 23, 2020. 2022000734 5 As stated in the LOW, on October 20, 2020, S1 spoke to Complainant about the status of the count, and Complainant responded by similarly berating S1. The AJ also found that no letter of decision was issued and that the LOW did not result in any discipline. The AJ concluded that the Agency put forth legitimate, nondiscriminatory explanations for its actions and that Complainant was unable to show those explanations were pretext for discrimination or retaliation. The AJ determined that there was nothing in the record to substantiate Complainant’s claims that similarly situated male supervisors were treated more favorably beyond her own bare assertions and conclusory statements. The AJ therefore concluded Complainant could not show that any of the challenged actions that constituted Complainant’s harassment claims were motivated by her protected bases. Furthermore, the AJ found that Complainant’s claims, taken as true, did not rise to the level of discriminatory or retaliatory harassment because they were “routine work assignments and instructions.” 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., 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 or retaliatory 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. Upon careful review of the AJ’s decision and the evidence of record, 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. 2022000734 6 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. 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. 2022000734 7 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 October 11, 2022 Date