[Redacted], Joanne V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Dec 21, 2020

Appeal No. 2020002269 (E.E.O.C. Dec. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joanne V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020002269 Agency No. 4J-530-0064-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.4003(a), from the Agency’s September 10, 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., 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 Complainant was employed as a Full-Time City Carrier at the Wilmette Post Office in Wilmette, Illinois. On February 19, 2019, she filed a complaint alleging discrimination based on race (Caucasian), color (white), sex (female), age (over 40), and reprisal for previous EEO activity when: (1) on December 3, 2018, she was placed on Emergency Placement; (2) on January 7, 2019, she was issued a 14 Day suspension; (3) on January 8, 2019, she was placed on Emergency Placement; and (4) on January 9, 2019, she was sent home. 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. 2020002269 2 Regarding claim 1, Complainant stated that on December 3, 2018, she went to her vehicle in preparation of doing a parcel run and found that it was low on fuel. She stated that she asked C1, the employee whose job it was to maintain the vehicles, why her vehicle had been left like that and he told her that it was not his problem. Complainant stated that she became upset and “swore a bit.” She maintained that she went back to work and S1, her supervisor, approached her with B1, the supervisor who assigns vehicles. Complainant stated that she asked why there was no fuel in her vehicle and B1 stated that he assigned the vehicle to be used because all the others in the line had less fuel. Complainant maintained that she had to refuel her vehicle, in addition to all her other duties. Later, while she was casing mail, S1 approached to give her the assignment for the day. Complainant did not believe it was fair because she had more to do and they were not going to give her more time to do it. She maintained that she did not swear or get upset. S1, however, told her, “Come on, I’m putting you on Emergency Placement.” Complainant stated that she was placed on Emergency Placement for Disruption of the Day-to-Day Operations of the Wilmette Post Office, where she remained until she was returned to duty on December 29, 2018. Regarding claim 2, Complainant stated that on January 7, 2019, she was issued a 14-Day suspension for Unacceptable Behavior by S1 for the events that occurred on December 3, 2018. She stated that the suspension was issued because S1 accused her of yelling and swearing in the parking lot and yelling at her on the workroom floor. Complainant maintained that she did not yell or swear but spoke loudly in the parking lot and did not yell on the workroom floor at S1. S1, however, wrote that she was confrontational and yelled at C1 in the parking lot, specifically stating that “I am sick and tired of people using my fucking equipment and wasting my fucking gas.” S1 also wrote that when she came to the parking lot to see what was happening, Complainant was irate and continued to yell. Furthermore, S1 indicated that when she was going over the expectations for the day with the carriers, Complainant again became angry and began yelling at her. Finally, S1 wrote that when given an opportunity to explain her behavior, Complainant admitted to using profanity, but stated that she was not yelling, only talking loudly, and she also admitted to continuing to use profanity when S1 came out to the parking lot to see what was happening. S1 stated that she was the management official responsible for placing Complainant on Emergency Placement on December 3, 2018, and issuing the 14-day suspension on January 7, 2019, because of Complainant’s unacceptable conduct and for disrupting the day-to-day operations when she became confrontational with C1 and her. A1, the Postmaster, was the concurring official for the 14-Day suspension. S1 indicated that Complainant used profanity and yelled and screamed at C1 and her and was insubordinate in the workplace. S1 held an investigatory interview with Complainant and maintained that she relied on Agency regulations and procedures to support her actions. Complainant filed a grievance and the 14-day suspension was reduced to a 7-day suspension to be held in her file for a period of 9 months.2 2 A1 also stated that the Emergency Placement was rescinded because the wrong charge was used. 2020002269 3 Regarding claim 3, Complainant stated that, on January 8, 2019, she was placed on Emergency Placement for Disruption of the Day-to-Day Operations of the Wilmette Post Office. According to Complainant, S1 went by her case and gave her instructions for the day and concluded by telling her to be safe. Complainant stated that she told S1 to forgo with the pleasantries and just state what she needed to say and move on. Complainant maintained that that she was neither yelling or being mean but was only stating that it was a waste of time for S1 to be pleasant. S1, according to Complainant, told her that she should not tell her, S1, what to do and that S1 tells Complainant what to do. Complainant responded that it was not a very respectful thing to say to her and S1 replied that she was sending her home and to return the next morning. S1 stated that, on January 8, 2019, she was giving her daily expectations and gave Complainant her assignment for the day. At the end, she told Complainant to have a good day and be safe. S1 stated that as she started to proceed to the next employee, Complainant told her in a loud tone, “Keep your have a good day be safe. You just gave me a 14-day suspension yesterday.” S1 stated that she was at the next employee and Complainant was still making comments in a hostile tone like, “You be safe.” She asserted that she then told Complainant that she was on Emergency Placement. S1 maintained that Complainant was placed on Emergency Placement for creating a hostile work environment by speaking in a hostile manner to management, disrupting day-to-day operations, and for unacceptable conduct. Agency time and attendance records show that on January 8, 2019, Complainant was inputted for .96 hours work and 7.04 hours of LWOP. Regarding claim 4, Complainant alleged that when she reported for work on January 9, 2019, S1 and A1 were standing at the door. She maintained that she walked into the office and started to work, when S1 yelled, “that’s failure to follow instructions, and told her to go home. Complainant stated that she put down what she had in her hands and picked up her backpack, and S1 accused her of creating a hostile workplace. According to Complainant, she signed in at 7:51 and signed out at 7:56. A1 stated that Complainant was sent home on January 9, 2019, by S1 because she started yelling at S1. He also indicated that Complainant did not lose any pay that day because she was paid for the hours she did not work. S1 stated that she sent Complainant home on January 9, 2019, on administrative leave because she failed to follow instructions and for unacceptable behavior. S1 did not indicate what the instructions were that Complainant failed to follow. Agency time and attendance records show that for January 9, 2019, Complainant was inputted for .05 hours work and 7.95 hours of administrative leave. 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 Equal Employment Opportunity Commission Administrative Judge. Because Complainant did not request a hearing, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment as alleged. Complainant filed the instant appeal. 2020002269 4 On appeal, Complainant indicated that the Postmaster, A1, the supervisors, and the Union President are all black, and that there were not many white carriers at the station. According to Complainant, the only white carrier who was treated fairly was involved with the Union and was seldom in the office. Complainant maintained that although she did an exceptional job, she “[h]ad no chance of being treated fairly.” Complainant attributed her mistreatment mostly to A1, her previous supervisor, and her Union President, B1, who she believes did not protect her from management. She argues that others who did the same things that she did were not called into the office like her. Finally, Complainant stated that she did not know how she could prove her accusations, because did not have access to the proof, and only has her word. 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 absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). 2020002269 5 Assuming, arguendo, Complainant established a prima facie case of race, color, sex, age and reprisal discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions set forth in claims 1, 2, and 3. Complainant offered no persuasive evidence of pretext. Complainant stated that she believed her race and color were factors because A1, S1, her prior supervisor, and B1 are all Black, and they do not feel that she belongs at their post office. She offered no evidence to support this assertion. She believed that her sex was a factor because A1 supposedly is not fair to women. She did not know if her age was a factor but noted that she was older than her managers and B1. Finally, Complainant maintained that her EEO activity was a factor because her prior EEO complaint was still active. We find that Complainant simply did not establish that discriminatory animus played any role regarding claims 1, 2, and 3. With respect to claim 4, we find that Complainant did not establish a prima facie case of discrimination when she was sent home on January 9, 2019. Complainant may establish a prima facie case of discrimination based on race, color, sex and age by providing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000). While Complainant is a member of protected classes based on her race, color, sex, and age, we find no evidence that she suffered an adverse employment action when she was sent home on January 9, 2019. There is no dispute that she was placed on administrative leave and fully compensated for that day. There was no disciplinary action taken against her. With respect to reprisal, to establish a prima facie case, she must show that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Again, we do not find that Complainant suffered an adverse employment action. However, when it comes to retaliation, the Commission has stated that adverse actions need not only qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on the statutory retaliation clauses are reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter . . . complainant or others from engaging in protected activity.” Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Under the specific facts of this case, we do not find that Complainant was subjected to conduct that was reasonably likely to deter her or others from engaging in protected EEO activity when she was sent home on administrative leave with full pay and no record of a disciplinary action having taken place.3 3 Before reaching a determination on the merits of Complainant’s four allegations, the Agency dismissed claims (1) and (4) on the grounds of mootness. This was because the Emergency Placement was rescinded, and Complainant was paid backpay and benefits to make her whole pursuant to a grievance settlement reached on January 8, 2019. On appeal, Complainant denies 2020002269 6 Even if the incident in claim 4 could be viewed as an adverse action or as an action reasonably likely to deter a person from engaging in protected EEO activity, we find that Complainant failed to show the incident in claim was motivated by discrimination rather than just the nondiscriminatory tension that existed between management and Complainant. Harassment In order to establish a claim of hostile-environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment 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). At the outset, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail. 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 above that Complainant failed to establish that any of the actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. that she has been reimbursed for the hours she was off work in December 2018. Similarly, the Agency noted that while Complainant alleged that she was sent home on January 9, 2019, she admitted that she was not placed on Emergency Placement nor was there a formal disciplinary action issued; moreover, she was paid for the day, and therefore suffered no actual harm. Because of our determination above, we will not address the Agency’s dismissal of these claims on procedural grounds. 2020002269 7 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, 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. 2020002269 8 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 December 21, 2020 Date