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

Equal Employment Opportunity Commission

Mar 8, 2023

Appeal No. 2022000837 (E.E.O.C. Mar. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sadie M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000837 Agency No. 4G770019521 DECISION Complainant appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an October 22, 2021 Final Agency Decision (“FAD”) concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, 13/4, for the TW House Post Office in Houston, Texas. On April 30, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment based on race (black), sex (female), age (56) and reprisal for prior EEO activity2 when: 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 identified Agency Case Nos. 4G770038319, 4G770009421, 4G770027420, and 4G770013621, discussed infra. 2022000837 2 1. Beginning on or about March 3, 2021 and continuing, she was singled out, harassed and intimidated daily, 2. On March 12, 2021 and ongoing, she was required to work overtime, 3. On March 13, 2021, Management deleted her 8:30 a.m. clock ring and required her to clock back in at 9:00 a.m., 4. On March 15, 2021, she was not given adequate time to file all of her union grievances, and, 5. Beginning on or about March 22, 2021, and ongoing, Management has plotted and colluded to issue her discipline. The Agency accepted Claims 1, 2, 3, and 5 for investigation, and procedurally dismissed Claim 4 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In addition, the Agency determined that Claims 2 and 3 should also be analyzed as disparate treatment claims because they alleged discrete acts and were timely raised with an EEO Counselor. The evidence of record reveals that Complainant reported to the Supervisor, Customer Services, EAS-17 (Black, female, age 30) (“Supervisor”), as well as the Station Manager, EAS-22 (Black, female, age 49). Management either denies Complainant’s allegations or asserts that it acted in accordance with Articles 3 and 8 of the Collective Bargaining Agreement (“CBA”) between the Union and the Agency. Article 3 of the CBA the states, among other things, that Management has the right “(A) to direct employees … in the performance of official duties…(C) maintain the efficiency of the operations entrusted to it; (D) to determine the methods, means, and personnel by which such operations are to be conducted…(F) To take whatever actions may be necessary to carry out its mission in emergency situations.” Article 8 of the CBA provides that carriers on the Overtime Desired List (“ODL”) can work a maximum of 12 hours a day/60 hours per week. If the ODL carriers have met their limit on hours, Management may require letter carriers on the Work Assignment Overtime (“WAO”) volunteer list to work overtime on their assigned routes if necessary to get the mail delivered. On March 12, 2021, Complainant worked 2.26 hours of overtime even though she was on the WAO volunteer list, and there were still employees on the ODL available. Station Manager disputes that Complainant was “required” to work overtime on March 12, 2021, explaining that Complainant worked “unwarranted” overtime. Station Manager stated that under Article 3 and Article 8 of the CBA, Management is permitted to “force” non-ODL carriers to work overtime, even outside their assigned route, if it is necessary to get the mail delivered. Complainant filed a grievance and was paid for additional time because it turned out that one of the employees on the ODL had not completed 60 hours of work by the end of the week. The record reflects that Complainant worked overtime on March 3, 13, 15 and 17, 2021. 2022000837 3 On March 13, 2021, Complainant recounts that she arrived at work, and, without notice, she learned that her start time was changed from 8:30 am to 9:00 am. Another Supervisor, Customer Service (black, female, age 61) deleted Complainant’s clock ring and Complainant clocked in again at 9:00 am. Supervisor and Station Manager maintain that all letter carriers with a start time of 8:30 am were notified that their report time had been changed to 9:00 am. Throughout the relevant time frame, Complainant had four open EEO complaints that all named at least one of the responding management officials in the instant complaint.3 Management was aware of Complainant’s prior EEO activity. In her affidavit, Supervisor voices apparent frustration with Complainant for engaging in EEO activity, alleging that Complainant’s copious allegations are “made up” and intended to harass Management. Station Manager declined to respond to the EEO Investigator’s multiple requests for affidavit testimony. Complainant recounts that she also pursued grievances with the Union about each of the claims in the instant complaint and since then, “the harassment has only escalated.” At the conclusion of its investigation the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request either a FAD or a hearing before an EEOC Administrative Judge (“AJ”). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a 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. The instant appeal followed. 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, (“EEO MD-110”) 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 3 (1) Agency No. 4G770038319 (formal filed December 19, 2019, 22 claims of alleged harassment), Hearing No. 460202100079X (May 25, 2021) (hearing suspended pending a grievance procedure); (2) Agency Case No. 4G770009421 (formal filed February 8, 2020, 12 claims of alleged harassment), EEOC Hearing No. 460202100244X (May 31, 2022) summary judgment in favor of Agency); (3) Agency Case No. 4G770027420 (formal filed October 20, 2020, 22 claims of alleged harassment), currently pending under EEOC Appeal No. 2022003793 (filed July 1, 2022 from EEOC Hearing No. 460202100211X (May 31, 2022) summary judgment in favor of Agency); and (4) Agency No. 4G770013621 (filed March 2, 2021, 4 allegations of harassment) currently pending appeal under EEOC Appeal No. 2023000410 (appeal filed October 10, 2022), EEOC Hearing No. 460202200110X (Aug. 4, 2022) (Complainant withdrew hearing request in favor of a FAD). 2022000837 4 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Hearing Request In addition to this appeal, Complainant filed a hearing request with the EEOC’s District Office in Houston Texas for the instant complaint. The AJ assigned to the matter found that the request was untimely, but dismissed it without prejudice, noting that the same complaint was already pending before the Commission, as an appeal of the Agency’s FAD. EEOC Hearing No. 460202200028X (Mar. 7, 2022). In response to the instant appeal, the Agency argues that Complainant’s Hearing Request was untimely, so the FAD should be upheld. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). In cases where “complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of the materials shall be computed from the time of receipt by the attorney.” 29 C.F.R. §1614.605(d). However, at all times, Complainant is responsible for proceeding the complaint whether or not a representative has been designated. See 29 C.F.R. §1614.605(e). The Agency provided documentation establishing that the ROI and the Hearing Request Form were delivered to Complainant’s address of record on August 27, 2021, and to her attorney’s address of record on August 26, 2021. The Agency also established that Complainant and her attorney were on notice that upon receipt of the ROI and Hearing Request Form, they had 30 days to request a hearing before an EEOC AJ, as the deadline was clearly stated on the Form and accompanying notice of right to request a hearing. However, the Hearing Request Form, signed by Complainant, is dated November 10, 2021, and it was not received by the EEOC District Office until November 24, 2021. Complainant did not offer any explanation for filing nearly 2 months after the deadline passed. Failure to State a Claim - Claim 4 Pursuant to 29 CF.R. § 1614.107(a)(1), an agency shall dismiss a complaint or portion of a complaint that fails to state a claim. An allegation involving a challenge to another forum’s proceeding, including proceedings related to the negotiated grievance process, constitutes a collateral attack and fails to state a claim within the meaning of the Commission’s regulations. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120142489 (Oct.23, 2014) (complainant’s allegation that the agency denied her union steward time to process grievances failed to state a claim) citing Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998). Claim 4 is an attempt to lodge a collateral attack on the negotiated grievance process, as it alleges that Complainant was not provided adequate time to file union grievances. 2022000837 5 Complainant should raise her concerns through the grievance process itself, and not through the EEO compliant process. Claim 4 was properly dismissed for failure to state a claim. Disparate Treatment - Claims 2 and 3 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For Claim 2, the Agency cites operational need as the legitimate nondiscriminatory reason Complainant was required to work overtime on March 12, 2021. Station Manager explained that there was a staffing need since the Agency introduced the Employee Federal Emergency Leave (“FEEL”) program to its employees in response to the Covid-19 pandemic. According to Station Manager, on March 12, 2021, the unit had over 15 open routes and they needed to get the mail delivered. She notes that under Articles 3 and 8 of the CBA, Management is permitted to “force” non-ODL carriers to work overtime, even outside their assigned route, if it is necessary to get the mail delivered. For Claim 3, Supervisor’s legitimate nondiscriminatory reason for deleting Complainant’s 8:30 am clock ring on March 13, 2021, was that Complainant had a report time of 9:00 am. Supervisor indicated that this was standard practice and identified three other carriers who, on different dates clocked in at 8:30 am even though they were scheduled at 9:00 am. Supervisor furnished evidence reflecting that these employees’ 8:30 am clock rings were also deleted, and they clocked back in at 9:00 am. 2022000837 6 While Complainant alleges that she was never notified of the change in report time, Supervisor testified that she announced the change over the PA system in advance (on an unspecified date) and notified the Union. The Supervisor Customer Service who changed Complainant’s clock rings stated that management made an announcement and put up a sign notifying carriers that their start time changed from 8:30 am to 9:00 am. The actions alleged in Claims 2 and 3 fall within Supervisor and Manager’s authority and are both permissible under Article 3 of the CBA (“Management Rights”). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second- guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). Complainant appears to argue that the Agency’s reason is pretext for discrimination because Station Manager violated Article 8 of the CBA when she required Complainant to work overtime on March 12, 2021 instead of assigning the overtime to an employee on the ODL. At the time, Complainant was on the WAO list and there were still employees on the ODL who had not worked their maximum 12 hours/60 hours per week. Complainant also asserts that she was not provided with an explanation for why she had to work overtime that day. However, aside from bald assertions, Complainant has not demonstrated that the Agency’s explanations were motivated by discrimination. In addition, for Claim 3, Complainant’s assertion that she was “singled out” based on her protected categories is contradicted in the record, as Complainant does not dispute that all carriers who started at 8:30 am had their start time changed to 9:00 am on March 13, 2022. We do not have the benefit of an AJ's credibility determinations or an AJ overseeing the further development of the record. Complainant bears the burden to prove, by a preponderance of the evidence, that the Agency’s proffered reasons were pretext for discrimination. When the evidence is at best equipoise, Complainant fails to meet that burden. See Brand v. Dep't Of Agriculture. EEOC Appeal No. 0120102187 (Aug. 23, 2012). As a hearing was not held, a determination cannot be made on which version of events is more credible. See Wiley G. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181972 (Nov. 27, 2019) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (Complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made) and Brand. Harassment/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 2022000837 7 would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her sex, race, age, and/or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). We note that allegations involving “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, do not rise to the level of severity necessary to state a claim of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. As previously discussed, Complainant was unable to establish that the Agency’s actions in Claims 2 and 3 were motivated by discrimination or reprisal. Complainant’s remaining claims are generalizations that she is targeted daily for intimidation and ongoing incidents of harassment, with only a few examples.4 Specifically, Complainant alleges that on March 3, 2021, Supervisor instructed another mail carrier to case and pull Complainant’s route, and on March 22, 2021, Supervisor subjected her to an investigative interview that did not result in disciplinary action. These examples describe common workplace occurrences, which do not constitute harassment. Moreover, the Commission has long held that when a harassment claim contains little beyond generalized assertions that are not severe or pervasive enough to constitute harassment, the claim will fail. See Michell B. v. United States Postal Serv., EEOC Appeal No. 0120140033 (Mar. 4, 2016) citing Monreal v. United States Postal Serv., EEOC Appeal No. 01A43828 (Jul. 28, 2005) (the complainant's claim of harassment failed because she had not adduced evidence of specific harassing conduct). Having thoroughly reviewed the record and the parties’ submissions, the Commission concludes that Complainant failed to establish discrimination as alleged. CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint 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. 4 There is no indication in the record that Complainant attempted to consolidate the allegations in the instant complaint with those in her complaints alleging harassment by the same management officials immediately before and after the relevant time in this complaint. 2022000837 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. 2022000837 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 March 8, 2023 Date