Annie F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 21, 20180120173026 (E.E.O.C. Dec. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annie F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120173026 Hearing No. 410-2015-00380X Agency No. 4K300022214 DECISION On September 17, 2017, 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 August 17, 2017, final order 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, CC- 01, at the Agency’s Atlanta Post Office-Morris Brown Station facility in Atlanta, Georgia. On October 23, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discrimination on the basis of age and in reprisal for prior protected EEO activity when: (1) on October 2, 2014, Complainant was “ordered off the clock;” (2) on May 30, 2014, July 6, 2014, July 19, 2014, July 26, 2014, and October 2, 2014, Complainant’s PS Form 3996, Carrier – Auxiliary Control forms, requesting overtime, were denied; (3) on August 15, 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. 0120173026 2 2014 and September 19, 2014, Complainant’s supervisor followed or rode along with Complainant on her route; (4) on September 25, 2014, Complainant’s supervisor threatened to deny Complainant pay for sick leave; and (5) on September 12, 2014, Complainant’s supervisor conducted an investigative interview about Complainant’s route delays. Complainant also alleged her supervisor generally subjected her to harassment, bullying, etc. The Agency accepted the complaint and conducted an investigation which revealed the following pertinent evidence. On October 2, 2014, Complainant was scheduled to end her tour at 4:00 p.m. She returned to the office at or after 4:00 p.m. without having completed her delivery. The time and attendance system showed Complainant worked 36 minutes over her guaranteed 8 hours. Complainant’s supervisor denied ordering Complainant off the clock. Complainant alleged that her route was overburdened by 45 minutes. She submitted several requests for overtime, including on or about May 30, 2104, July 6, 2014, July 19, 2014, and July 26, 2014, which were not approved. Complainant was issued discipline on June 13, 204 and August 25, 2014 for delay of mail and/or failure to follow instructions but this was removed from her file pursuant to the outcome of a grievance procedure. One of Complainant’s co-workers indicated he thought Complainant’s overtime requests should have been approved because all the routes at the facility were over 8 hours and he believed Complainant’s supervisor was subjecting Complainant to discriminatory harassment. Another co-worker indicated Complainant’s supervisor denied Complainant’s requests while approving other carriers’ requests and he believed Complainant’s requests should have been approved because sometimes she would assist on his route and not have sufficient time. Another supervisor indicated that each route was unique and supervisors used a managerial tool to ascertain how much carrier time was needed for each route. Both he and Complainant’s supervisor had disapproved carriers’ requests for extra time on days that showed no extra time was needed to complete the routes. Management followed Complainant on her route or rode with her to observe the territory on her route and observe her work practices. This was consistent with the Agency’s policies. Complainant’s supervisor denied having knowledge of Complainant being threatened about her pay and indicated that, to her knowledge, Complainant had been paid all money due to her. Complainant’s supervisor denied knowing who conducted an investigative interview with Complainant. 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). 0120173026 3 Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s December 22, 2015, motion for a decision without a hearing and issued a decision without a hearing on July 13, 2017. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant has not submitted a brief or statement in support of her claim. ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact. Complainant was given ample notice of the Agency's motion for a decision without a hearing, a comprehensive statement of the allegedly undisputed material facts, the opportunity to respond to such a statement, and the chance to engage in discovery. We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below. Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate. Complainant has alleged that the Agency treated her disparately. 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). 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). 0120173026 4 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 that Complainant established a prima facie case of discrimination, her claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. With respect to Complainant’s allegation of being told to get off the clock on October 2, 2014, the Agency’s time and attendance system establishes that Complainant clocked out at 4:36 p.m. Complainant’s shift ended at 4:00 p.m. and she was not approved for any additional overtime that day. With respect to Complainant’s allegations relating to the denial of her overtime requests, management explained that such requests are granted based on necessity. Supervisors use a managerial tool to ascertain how much carrier time is needed on a route. Other carriers’ requests were also not approved when it was determined that the route did not require extra time. With respect to management’s riding along with or following Complainant on her route, management explained such observation of employees work practices is consistent with Agency policy. With respect to Complainant’s allegations of threats to her pay and an investigative interview, the record does not establish either of these alleged events, assuming they are true, resulted in any discipline or other adverse consequences. Thus, we find that 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. Complainant has also alleged the Agency subjected her to harassment. 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. We find that Complainant has failed to establish a prima facie case of harassment. Even if her allegations relating to bullying, being spoken to harshly, 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). 0120173026 5 Additionally, with respect to Complainant’s allegations relating to management’s decisions, 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). Although Complainant and her co-worker assert that Complainant’s supervisor acted discriminately, there is no evidence to support the assertion that Complainant’s age or prior EEO activity played any role in the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support this claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order. 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. 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. 0120173026 6 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. 0120173026 7 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, 2018 Date Copy with citationCopy as parenthetical citation