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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2021003757 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003757 Agency No. 4G-780-0143-20 DECISION 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 May 13, 2021, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Temple Main Post Office in Temple, Texas. On November 2, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to harassment based on race (Black), sex (female), color (Black), and in reprisal for prior protected 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 testified that she had prior EEO complaints and participated in other prior EEO issues involving her co-workers. 2021003757 2 1. On or about March 26, 2020, Complainant was issued a Letter of Warning (LOW). 2. On March 27, 2020, April 1, 2020, and other unspecified date(s), Complainant was subjected to several street observations. 3. On April 1, 2020,3 Complainant was given instructions to park her assigned Long-Life Vehicle (LLV) in an emergency and handicapped parking space. 4. On April 8, 2020, Complainant’s Supervisor pushed Complainant’s right hand. 5. On or about April 8, 2020, Complainant was issued two (2) 7-Day Suspensions for Unsatisfactory Performance/Delay of Mail, and Unsatisfactory Performance/Failure to Work in a Safe Manner. 6. On April 10, 2020, Complainant was issued a 7-Day Suspension for Misdelivery of Parcel. 7. On April 14, 2020, Management discovered parcels in the parking lot next to Complainant’s vehicle. 8. On April 15, 2020, Complainant was given an Investigative Interview. 9. On April 22, 2020, Complainant was issued two (2) 14-Day Suspensions for Failure to Follow Instructions/Safety, and Failure to Follow Instructions/Delay of Mail. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final decision. On May 13, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation occurred. The instant appeal followed. On appeal, Complainant submits various statements restating that the Agency discriminated against her and subjected to a hostile work environment as alleged. 3 Complainant testified that this alleged incident occurred on August 26, 2019. 2021003757 3 ANALYSIS AND FINDINGS Disparate Treatment (Claims 1, 2, 5, 6, 8, and 9) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. Letter of Warning (Claim 1) Although Complainant acknowledged that she received the LOW because she failed to complete her route in eight hours, Complainant explained that the route was never adjudged and took over eight hours to complete. Complainant’s supervisor (S1A) acknowledged that she issued Complainant a LOW, but she was unsure why LOW was issued. S1A indicated that the reason for the LOW would have been indicated on the LOW. Nevertheless, the record indicates that the LOW was expunged following Complainant filing a grievance regarding this matter. A copy of the March 26, 2020 LOW states that Complainant was charged with unsatisfactory performance - failure to follow instructions. 2021003757 4 The LOW explains that Complainant made comments on the workroom floor that her route was cased, pulled, and it would take her more than the allotted eight hours to complete. The LOW further indicates that Complainant submitted a request for overtime to complete the route. Additionally, the LOW states that Complainant failed to display a willing attitude at work, and she failed to discharge her assigned duties conscientiously and effectively. Street Observations (Claim 2) Complainant asserted that she was subjected to several street observations, but no reason was provided for why she was being observed. Complainant stated that African American females, like herself, were more subject to observations and discipline. S1A testified that she conducted street observations on Complainant as supervisors were required to perform five street observations a week, and during the period at issue, there were three to four supervisors to conduct these observations. Consequently, S1A explained that street observations were required to determine whether there were any issues with the carrier’s performance. S1A further noted that, per Agency policy, carries with two or more years of experience must have a minimum of two observations per year. Similarly, Complainant’s other supervisor (S1B) testified that in Complainant’s case, Complainant was not completing her route in eight hours which led to her receiving street observations. Additionally, Complainant’s Postmaster (P1) explained that street observations are often conducted based on a carrier’s performance while on street time. For instance, an observation may be necessary due to excessive street variance with a carrier’s performance. Consequently, the observations are in place to help carries improve their carrying abilities/job duties (i.e. reduce excessive street time used on a route). Additionally, P1 indicated that carriers are notified in advance of their street observations and are informed of their “time wasting practices” which resulted them in being observed. In Complainant’s case, P1 acknowledged that Complainant was subject to a street observation based on her performance. P1 further acknowledged that Complainant did not assume any responsibility for her performance issues, rather, she provided management an excuse for all issues identified during the observations. Suspensions (Claims 5 and 6) S1A acknowledged that she issued both of the 7-Day Suspensions at issue.4 S1A also explained that because Complainant already had an active LOW on file, the next step in progressive discipline was for her to receive a 7-Day suspension. 4 Regarding claim 6, documentation in the record indicates that there was no 7-Day Suspension issued on April 10, 2020 for failure to deliver a parcel. We note that Complainant does not provide any testimony regarding this claim. However, we further note that documentation in the record supports that Complainant was issued a 7-Day suspension for delay of mail, and the 2021003757 5 Regarding Complainant’s 7-Day suspension for unsatisfactory performance and delayed of mail, P1 stated that he concurred with S1A’s decision to issue the discipline. P1 explained that Complainant continually failed to follow instructions even after management had informed Complainant of her performance issues. Specifically, P1 indicated that Complainant had a packaged on her LLV, which she scanned for delivery, but failed to deliver that package while on her mailing route. The package, a large vacuum cleaner, was delivered to the wrong trailer house. P1 retrieved the package which resulted in a three-day delayed delivery of the package to the correct address. A copy of the relevant April 8, 2020 7-Day suspension letter reflects that Complainant was charged with unsatisfactory performance - delay of mail. The letter notes that Complainant delivered a package to the wrong address. However, the record indicates that Complainant field a grievance regarding the matter, and her 7-Day suspension was expunged. Regarding Complainant’s 7-Day Suspension for unsatisfactory performance and failure to work in a safe manner, P1 stated that there were safely issues regarding how Complainant parked her vehicle after serving a curb line mailbox, even though Complainant had previously received a safety talk on this very issue. Similarly, S1B explained that all carriers were instructed to back into parking spots and Complainant was observed not following this procedure when she parked her vehicle in a trailer park. A copy of the relevant April 8, 2020 7-Day suspension letter reflects that Complainant was charged with unsatisfactory performance - failure to work in a safe manner. The letter notes that Complainant was “observed at the Midway trailer park not backing into [her] parking spot when [she] arrived.” However, the record indicates that Complainant filed a grievance regarding the matter, and her 7-Day suspension was expunged. 14-Day Suspensions (Claim 9) Regarding Complainant’s 14-Day suspension for failure to follow instructions/Safety, S1B acknowledged he issued this discipline because Complainant was again observed violating Agency parking procedures. Because it was a repeated offense of a safety infraction, P1 explained that a 14-Day Suspension was warranted, and he concurred with the suspension. Nevertheless, S1A and S1B explained that Complainant filed a grievance regarding the matter and this 14-Day suspension was expunged. A copy of the relevant 14-Day suspension reflects that Complainant was charged with failure to follow instructions - safety when Complainant was observed backing at a curb line box. record indicates that Complainant’s delayed mail charge resulted in her failure to deliver a package to the correct address. Therefore, we address all 7-Day suspension as provided in claim 5. 2021003757 6 The suspension letter indicates that Complainant explained that she baked out in this manner because she wanted to avoid blocking the driveway which she considered a safety concern. The letter further indicates that Complainant had been previously instructed avoid backing at the curb line. Regarding Complainant’s 14-Day suspension for failure to follow instructions/delay of mail, S1B acknowledged that he issued this discipline because Complainant mis-delivered a parcel. Because it was a repeated offense of a safety infraction, P1 explained that a 14-Day Suspension was warranted, and he concurred with the suspension. Nevertheless, S1B explained that this 14- Day suspension was subsequently expunged following Complainant filing a grievance regarding the matter. A copy of the relevant 14-Day suspension for failure to follow instructions - delay of mail reflects that Complainant delivered a parcel to an incorrect address. Investigative Interview (Claim 8) Complainant identified S1B as the management official who conducted the investigative interview at issue. Complainant explained that she did not understand why she was investigated. However, S1B did not recall conducting an investigation. Nevertheless, testimony from another supervisor (S1C) acknowledged that S1B conducted the investigative interview because of Complainant’s unsatisfactory work performance discovered during the street observations. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on her race, color, sex, or reprisal for prior protected EEO activity. Harassment - (Claims 3, 4, and 7) To prove her claim of hostile environment harassment, 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 would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2021003757 7 As an initial matter, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1, 2, 5, 6, 8, and 9 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, color, sex, and reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Our review of record supports that the Agency did not subject Complainant to a hostile work environment as alleged. Parking Instructions for LLV (Claim 3) Complainant stated that she believed that P1 instructed her to park in a restricted area as an opportunity to discipline her later. Complainant indicated that she refused to follow P1’s instruction because she “did not agree that breaking traffic laws were okay.” P1 acknowledged that he had instructed Complainant to park in the front and dismount the LLV because he thought this area was closer and would take less time for Complainant to complete her tasks. P1 further acknowledged that Complainant informed him that the area he instructed her to park was a handicap parking area, and consequently, Complainant informed him that she would not park there. P1 admitted that there was a handicap sign that had been faded out, and after Complainant told him that she would not park there, he “did not push the issue any further.” Pushed Hand Incident (Claim 4) S1A testified that Complainant had been arguing with her and suddenly began walking up to her. When Complainant approached, S1A indicated that Complainant reached her hand over S1A’s hand, and S1A pulled her hand away and in an upward direction which caused her hand to touch Complainant’s hand. In a statement attached to her affidavit, S1A explained that on the day at issue, S1A asked Complainant to sign two 7-Day suspension letters which Complainant refused to sign. S1A noted that Complainant became upset and loud. When S1A proceeded to write on the suspension letters that Complainant refused to sign, S1A indicated that Complainant approached her with a pen/pencil and attempted to snatch the papers from her. Complainant indicated that she was attempting to add her initials to the letter. However, S1A explained that she moved her hand to block Complainant’s hand which resulted in Complainant’s hand coming in contact with hers. S1A stated that Complainant filed a grievance regarding the matter and an investigation determined that S1A was not at fault. Similarly, P1 explained that from what he understood, Complainant refused to sign a document but changed her mind and attempted to snatch the document out of S1A’s hand which caused S1A’s hand to touch Complainant’s hand. Parcels Near Complainant’s Vehicle (Claim 7) 2021003757 8 Complainant stated that parcels were found near her vehicle that were not assigned to her route, and management failed to conduct an interview into the matter. Complainant asserted that she felt that she was a “target” for discriminatory harassment because of her race, sex, and due to her prior discipline. However, S1A, S1B and P1 all stated that they were unaware of any parcels found near Complainant’s vehicle during the period at issue. Assuming these incidents occurred as alleged, Complainant has not presented sufficient credible evidence demonstrating that considerations of her race, color, sex, or retaliatory animus motivated management’s actions towards Complainant. Here, Complainant disagreed with P1’s instructions because the instructions would have resulted in her parking in a handicap parking spot, and P1 accepted Complainant’s explanation. The record further supports that Complainant and S1A had an argument, Complainant reached for the documents that S1A was holding, and S1A’s reaction to Complainant’s actions caused their hands to touch each other. Consequently, the record does not support that S1A deliberately hit Complainant’s hand. Aside from Complainant’s testimony, there is no other testimony to collaborate Complainant’s allegations that unassigned parcels were found near her vehicle. The substance of many of these claims involve typical disputes between an employee and management. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Aside from Complainant’s bare assertions there is simply no evidence that the disputed actions were motivated in any way by Complainant’s race, color, sex, or reprisal for prior protected EEO activity and, therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that unlawful retaliation occurred. 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. 2021003757 9 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. 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. 2021003757 10 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 29, 2023 Date