Akiko L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 20, 20180120172924 (E.E.O.C. Nov. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Akiko L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120172924 Agency No. 4G700004816 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 9, 2017 final agency decision (FAD) 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS- 18, at the Agency’s Abita Springs Post Office facility in Abita Springs, Louisiana. On June 17, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of race (Caucasian), sex (female), color (White), disability (asthma and arthritis), age, and reprisal for prior protected EEO activity when: (1) beginning in 2011 through February 2016, she was subjected to a pattern of ongoing harassment which created a hostile work environment and (2), in January 2016, she was required to have an F4 audit in order to receive an additional clerk and she given an unfair evaluation in the F4 audit. 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. 0120172924 2 In support of her harassment claim, she alleged having been reprimanded, harassed, demeaned, humiliated, and belittled. She noted five other postmasters (described as 3 white females, 1 white male, and 1 black female) at level 18 offices that had been given an additional clerk without being subject to an F4 audit. The Agency accepted the complaint and conducted an investigation, which revealed the following pertinent evidence. A letter from the Agency to Complainant, dated March 8, 2011, indicates Complainant’s post office (Abita Springs) had been tentatively selected for the Delivery Unit Optimization (DUO) process, a program that transferred delivery units from smaller to larger facilities to increase operational efficiencies. It informed Complainant that should her post office be reduced in level, the salary for her position would be adjusted in accordingly. The Abita Springs Post Office was selected for the DUO process and some employees were initially moved to the Mandeville Post Office. The Abita Springs Post Office was planned to be reduced from a level 18 to level 15 facility. On March 12, 2012, Complainant was offered a reassignment to the Albany Post Office, another level 18 office, but Complainant was not reassigned. She remained at the Abita Springs Post Office. The record includes numerous emails, dated from 2011 to 2015, between the Agency’s management, Complainant, and employees at the Mandeville Post Office, generally discussing matters such as transportation issues, lost mail, employee assignments, and Complainant’s frustration at working with the Agency’s management and/or the Mandeville Post Office. In September 2015, the Agency returned the employees who had been reassigned to the Mandeville Post Office back to the Abita Springs Post Office. The DOU was reversed effective October 3, 2015. Complainant requested an additional clerk and, in December 2015, the Agency informed Complainant that to get an additional clerk, she would have to undergo a Function 4 (F4) audit. Beginning on January 11, 2016, an auditing postmaster conducted the F4 audit. The auditing postmaster and the manager reviewed the audit report with Complainant. Numerous statements from Complainant generally indicate her dissatisfaction with the audit results and the way the auditing postmaster and manager conducted and reviewed the results of the audit. Her allegations included being treated unfairly and subjected to belittling, yelling, and harsh criticism, including in front of customers and other employees. On February 24, 2016, the manager sent Complainant an email requesting that she take training and assist in the rural route mail count. Complainant informed the manager that due to her sister being ill, she was unable to help with the route inspections. Numerous statements by Complainant generally indicate that she felt pressured by the manager to perform these duties and she felt harassed, stressed, and threatened with an undesirable reassignment. 0120172924 3 On that same day, February 24, 2016, Complainant initially contacted an EEO counselor. The EEO counselor’s report indicates that Complainant alleged the Agency subjected her to discrimination on the basis of race (White), sex (female), age, and retaliation for participation in protected EEO activity when, beginning on January 20, 2016, the Agency’s management harassed, demeaned, and belittled her, relating to the F4 audit and route inspections. Complainant specifically alleged that she was harassed by the manager and the auditing postmaster. She was treated differently from other postmasters in that no other postmaster had been subject to an F4 audit as a prerequisite to being assigned an additional clerk. She informed the manager that she was having problems with the Mandeville Post Office but nothing was done. Complainant requested a copy of the audit, but the Agency never provided it. The manager told Complainant she was not a team player, but Complainant gave extra time to the Agency daily. Complainant informed the manager that Complainant’s sister was sick at the time. In response, the manager indicated that she requested the F4 audit because Complainant requested the additional clerk, but she did not perform it. The audit was approved and performed by another postmaster. The carriers at issue are domiciled at the Abita Springs Post Office and are under Complainant’s management and she does not know why Complainant says they belong to the Mandeville Post Office. On February 28, 2016, Complainant went on sick leave. In March 2016, the Agency appointed an Acting Postmaster to serve during her absence. Complainant submitted a statement, dated March 21, 2016, indicating that she would like to amend her complaint. Her allegations included that she had been working in a hostile work environment. The DUO guidelines were not followed, as she was never given a cost analysis. Her manager attempted to involuntarily transfer her to another level 18 office that was 63.3 miles from her home. Her requests for information and regarding the behavior of the male managers at the Mandeville Post Office were ignored. Her DUO was reversed and her employees came back overburdened and the carriers could not make dispatch. She was demeaned and belittled by the manager instead of being treated fairly or with respect. 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 (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. 0120172924 4 CONTENTIONS ON APPEAL On appeal, Complainant asserts that, since assuming her position as Postmaster at the Abita Springs Post Office, she has been targeted with harassment, including actions so severe as to have impacted her subordinate employees and the operations of the post office. She notes letters from employees (and former employees) generally supporting her position and indicating the office was constantly targeted by management, there were threatening measures, employees were placed under stress and harassed, carriers were removed from the station which negatively impacted things, etc. She generally alleges problems or irregularities with respect to the Agency’s management’s failure to follow procedures and guidelines relating to the DUO; reiterates her problems working with the Mandeville Post Office, specifically alleging the male managers at the Mandeville Post Office were harassing her and the female employees at the Abita Springs Post Office; and describes instances of the Agency’s managers’ allegedly yelling, belittling, berating, etc., including suggesting that there was not proper consideration of her needs to care for her ill sister with respect to work assignments. Complainant never returned to her position and has since retired, as she was no longer able to continue employment with unchecked retaliation and discrimination. In response, the Agency argues that the alleged incidents occurring over a six-year time period did not result in any tangible adverse action or amount to a viable claim of harassment/hostile work environment. Complainant has offered no evidence that any of the alleged events related to her disability. Complainant’s alleged harassing incidents relate to the performance of her job as a postmaster, including being relocated pursuant to the DUO process, the F4 audit requirements, feedback relating to the audit, and her manager seeking her participation in route count. The Agency’s management’s decisions to improve operational efficiencies are not adverse actions to Complainant. With respect to Complainant’s allegations of retaliation, the Agency asserts that Complainant’s prior EEO activity was in February/March 2009, which is almost two years prior to the alleged events in this case. The time lapse is so attenuated as to preclude Complainant from establishing a causal link. 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 lawâ€). 0120172924 5 Complainant alleges the Agency subjected her to ongoing harassment, beginning in 2011 and continuing until her going on sick leave on February 28, 2016. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create a hostile or abusive working environment.†See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive†and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. With respect to Complainant’s allegations that the Agency subjected her to a hostile work environment, we find that she has failed to establish a prima facie case. Even if her allegations relating to yelling, berating, belittling, being subject to negative comments relating to the F4 audit, etc. were true, we find they are insufficiently severe or pervasive to have altered the conditions of her employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked†the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The allegations, assuming they are true, were isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). We also find that many of Complainant’s harassment allegations can be described as relating to disagreements with managerial decisions and processes, such as relating to the DUO process, including reassignments and personnel changes; the F4 audit process and procedures; and the assignment of duties, such as route inspections. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). As a result, Complainant has failed to establish that she was subjected to harassment in these instances as well, as she has failed to establish that discriminatory animus played any role in the Agency’s actions. Complainant also alleged that the Agency treated her disparately with respect to the F4 audit. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 0120172924 6 For a complainant to prevail, 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume Complainant has established a prima facie case with respect to her claim, her claim nevertheless fails, as the record establishes the Agency had legitimate and nondiscriminatory reasons for its actions. The manager testified that the Agency’s Operations Support department determines which post offices receive an audit in cases such as Complainant’s request for an additional clerk. Standard procedure in such a case is that the postmaster is to submit the request to her immediate supervisor, who would then submit a request to the Complement Board. The Complement Board approved Complainant’s request for the additional clerk position, after the completion of the F4 audit. We note that the F4 audit report indicates a need for an additional clerk. Therefore, we find Complainant has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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. 0120172924 7 Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120172924 8 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 November 20, 2018 Date Copy with citationCopy as parenthetical citation