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

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022002442 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melinda S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002442 Agency No. 1G-321-0056-19 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 April 28, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Mail Handler at the Agency’s Jacksonville Processing and Distribution Center in Jacksonville, Florida. On October 12, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment in reprisal for prior protected EEO activity when: 1. Since May 9, 2019, she has been subjected to continuous threatening, intimidating and bullying behavior by a coworker (CW) and she feels management has not done enough to stop it; 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. 2022002442 2 2. On May 28, 2019, June 24, 25, and 26, 2019, and October 21 and 25, 2019, after acquiring a management-mandated tow motor license, she has been improperly bypassed for tow motor duties2; 3. On July 25, 2019, management threatened to walk her out of the building if either she or CW submitted another written complaint about the matter; 4. On October 31, 2019, management assigned CW, who she had accused of previously harassing her, to work in the same area as her; and 5. On or about November 4, 2019, Acting Manager Distribution Operations (MDO) disrespected and belittled her on the workroom floor. 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In its final decision, the Agency found that, regarding claims 1, 3, and 4, which all involved allegations about CW, Complainant could not show the Agency’s actions were based on reprisal. Complainant alleged that, on September 23, 2019, CW pushed past Complainant with her body and then drove close to her with either a forklift or tow motor. There was also another incident where Complainant alleged that on October 30, 2019, CW stopped in an aisle without room for both the tow motor and forklift to pass and without room for Complainant to move around her, at which point CW called Complainant a “dumb black bitch.” Complainant said she called CW the same thing back.3 For this latter incident, both CW and Complainant received Letters of Warning. Prior to these incidents, the Agency had conducted a District Threat Assessment based on CW’s complaints about Complainant and CW’s allegations that Complainant was threatening her. Both Complainant and CW were interviewed for the threat assessment, but the threat assessment team determined that there was no credible threat. After the September and October incidents, Complainant’s direct supervisor, Supervisor Distribution Operations (SDO), said that Complainant refused to meet or communicate with her about her allegations against CW. SDO averred that she was also aware of several of Complainant’s coworkers who felt that Complainant had bullied them. 2 This claim as originally defined identified the timing as: “On dates to be specified, since May 16, 2019. . .” In her affidavit, Complainant specified the dates on which she alleged management passed her over for tow motor duties, and we therefore include those dates in the framing of the complaint. 3 CW’s version of events to management was that she was driving a forklift and blew the horn to stop Complainant from coming around the corner with her tow motor where there was no room for both of them to pass, but Complainant kept coming towards Complainant. CW stated they both had to stop, and then Complainant called her a “dumb bitch,” to which CW responded, “no, you are a dumb bitch.” 2022002442 3 MDO (a different supervisor than the Acting MDO), stated that Complainant’s statements regarding several incidents involving CW did not support a claim of harassment and that the Postal Inspection reviewed surveillance film and found no finding of harassment. Senior Plant Manager, who supervises the MDOs, averred that Complainant’s and CW’s allegations were investigated, and other employees were interviewed as potential witnesses. Manager Air Operations (MAO) conceded that on July 25, 2019, he stated to Complainant and CW, “Yes I understand, you’re right, this isn’t fair but the next person to write a statement both of you will be walked out of here.” He averred that he said this because he felt both Complainant and CW were each “creating a hostile work environment for the other.” At the time he made the comment, MAO averred that Complainant did not respond to it or say she disagreed with him. Complainant was not walked out of the building. The day after the October 30, 2019, incident that resulted in Letters of Warning for both parties, Complainant claimed that she and CW were assigned to work in the same area. Because Complainant and CW both have the same dock bid job, they are assigned to the same dock, though SDO stated that Complainant mostly operates a tow motor driving mail to the dock. SDO averred that on the date at issue, Complainant did not notify management of any concerns she had with her assignment. Regarding claim 2, Complainant stated that SDO was the responsible management official who improperly bypassed her for tow motor driving duties and that she knew of no other management officials involved. SDO averred that the tow motor license is part of Complainant’s job bid and is not separately mandated by management, but she also stated that she (SDO) was not scheduled to work on the days that Complainant listed she was bypassed for tow motor duties. SDO therefore did not know whose decision it was to bypass Complainant, but she stated she was not part of that decision. Regarding claim 5, Complainant alleged that on November 4, 2019, Acting MDO belittled her by saying, “Well, we still need more GPC’s [general purpose containers] inside so you go over there, and empty more out until I tell you to stop.” According to the Acting MDO, he gave Complainant these instructions because an acting supervisor4 on the dock informed him that Complainant was not listening to her instructions to empty GPCs. Acting MDO averred that Complainant told him she had completed one already, so he instructed her to continue until she was told to stop. The Agency concluded that Complainant failed to show that management’s actions rose to the level of a hostile work environment or that they were based on her prior EEO activity. 4 The record refers to this acting supervisor as the “204B Supervisor.” This person was a mail handler at the Agency but was acting as a supervisor on Complainant’s dock during the time at issue. 2022002442 4 The Agency also found that management had legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut as pretextual, outside of her bare assertions that management was motivated by reprisal. The Agency therefore found that Complainant could not show that she had been subjected to 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”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for retaliation. Regarding claim 2, we find that Complainant failed to show that the Agency’s actions were motivated by reprisal. Complainant’s supervisor, SDO, was not scheduled on the days when Complainant was not assigned tow motor duties and did not take part in the decision, and Complainant provides no evidence beyond her bare assertion that SDO or any other managers were motivated by her prior EEO activity. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claim 2. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As for the remaining claims (claims 1, 3, 4, and 5), we find that Complainant failed to show the Agency subjected her to a hostile work environment. Regarding Complainant’s allegations about management’s response to her complaints about CW, we find that the incidents between her and CW as alleged were not sufficiently severe or pervasive to establish a hostile work environment and that the Agency took sufficient steps to investigate the allegations and found no evidence of credible threat or harassment. Regarding the remaining allegations, we find these were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. 2022002442 5 Even if the incidents occurred as alleged in claims 1, 3, 4, and 5, we find such incidents insufficiently severe to constitute a hostile work environment. We also find that Complainant failed to show that the Agency’s actions were based on retaliatory animus. Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 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). 2022002442 6 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. 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 February 2, 2023 Date