[Redacted], Sandra A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Feb 3, 2021

Appeal No. 2020000049 (E.E.O.C. Feb. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sandra A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020000049 Agency No. 1G-321-0063-18 DECISION On August 22, 2019, 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 July 19, 2019 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. 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 Manager, Distribution Operations, EAS-19, at the Agency’s Processing and Distribution Center in Tallahassee, Florida. On September 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), religion (Christian), national origin (Black American), disability, age (54) and in reprisal for prior protected activity, when: 1. On May 3, 2018, her request for Annual Leave was denied; 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. 2020000049 2 2. On or about May 4, 2018, through August 26, 2018, she was reassigned from her Manager of Distribution Operations (MDO) position to a lower level supervisory position; 3. On September 17, 2018, her request for 80 hours of Annual Leave from October 13-26, 2018, was denied; 4. On or about October 30, 2018, [Plant Manager] entered negative comments on her End-of-Year Performance Evaluation and falsely asserted that she discussed the review with her on October 30, 2018; 5. On November 16, 2018, her request for Annual Leave was denied; 6. On November 20, 2018, she called in for 24 hours of FMLA-protected Sick Leave but [Plant Manager] changed the leave to LWOP; 7. On November 9, 2018, [Plant Manager] notified her that she had failed her Performance Improvement Plan (PIP) despite [Plant Manager’s] not providing her with any coaching or training during the PIP and [Plant Manager’s] failure to have timely discussions with her; and 8. On December 11, 2018, after her former MDO position was posted with her original hours, she became aware that she had been discriminated against in March 2018, when [Plant Manager] told her that her job had been posted incorrectly and changed her hours to 15:00 to 23:50 (3:00 p.m. to 11:30 p.m.). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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 or reprisal as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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 To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020000049 3 She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Claim #1 (Annual Leave Denied - May 2018) According to the Agency, Complainant was denied annual leave on May 3, 2018 because “heavy [mail] volumes [were] anticipated.” ROI Exhibit 4, page 1. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not shown by a preponderance of evidence that the Agency’s explanation is a pretext designed to conceal discriminatory or retaliatory animus. Claim #2 (Reassignment) According to the Agency, Complainant was reassigned from the MDO position for “developmental” reasons. The detail was designed to give Complainant “an understanding of the 24-hour clock, customer service issues for our customers, and our impact to our customers.” ROI Affidavit B, page 15. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not shown by a preponderance of evidence that the Agency’s explanation is a pretext designed to conceal discriminatory or retaliatory animus. Claim #3 (Annual Leave Denied - October 2018) The Agency explains that Complainant’s request for 80 hours annual leave in October 2018 was denied because no other managers were available to cover for Complainant’s absence during that period. ROI Affidavit B, page 16. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not shown by a preponderance of evidence that the Agency’s explanation is a pretext designed to conceal discriminatory or retaliatory animus. Claim #5 (Annual Leave Denied - November 2018) The record shows that the Agency denied Complainant’s leave request because she did not have a “release date” to her new position. The purpose of the leave was to allow for Complainant’s relocation, but a release date had not been set. ROI Affidavit A, pages 49, 53. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not shown by a preponderance of evidence that the Agency’s explanation is a pretext designed to conceal discriminatory or retaliatory animus. 2020000049 4 Claim #6 (Sick Leave Changed to AWOL) According to the Agency, Complainant’s leave request was changed to Family and Medical Leave Act Leave Without Pay (FMLA-LWOP) because Complainant did not provide necessary documentation to support the request. ROI Affidavit B, page 12. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has not shown by a preponderance of evidence that the Agency’s explanation is a pretext designed to conceal discriminatory or retaliatory animus. Hostile Work Environment It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes or her prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, there is no evidence that any of the claimed harassing actions undertaken by Agency management or by Complainant’s co-workers were based on her protected classes. Without evidence of this nature, Complainant’s harassment claim fails. Furthermore, as the Commission has repeatedly held, the discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Complainant failed to demonstrate any severe or pervasive conduct that would constitute a work environment so unbearable that the terms and conditions of her employment were altered or otherwise negatively impacted. The incidents evinced here appear to be normal work-related interactions actions found in the workplace. As a result, the Commission finds that Complainant was not subjected discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM that Agency’s final decision. 2020000049 5 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. 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. 2020000049 6 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 3, 2021 Date