0120162643
02-13-2018
Ashely S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ashely S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162643
Hearing No. 430201500141X
Agency No. 4K270007414
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's August 27, 2015 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 was employed as a Carrier Technician (Q-02) at the High Point, Main Office Station in High Point, North Carolina.
On September 18, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment/harassment on the bases of race (African-American), sex (female), religion (Christian), color (black), and age (50) when:
1. On June 9, 2014, Management interrupted her four times while she was at lunch and engaged in religious practice; and
2. During her employment, she has been subjected to ongoing intimidation by Management including, but not limited to, the following incidents:2
a. In December 2013, she did not present her badge during uniform inspections, and the Postmaster ("PM") stated, "I swear if you do not have your badge tomorrow, I will;"
b. On May 10, 2014 Management issued her a Pre-Disciplinary Interview ("PDI") for penalty overtime;
c. On May 27, 2014, she placed a bottle of grapefruit juice she had been drinking on her case, and PM approached and asked, "is the reason you can't get this route up because you are drinking at your case?"
d. On May 27, 2014, when she returned to the post office without completing her route (to avoid penalty overtime), PM yelled "so you wanna play?"
e. On May 29, 2014, she was issued a PDI for "delaying the mail;"
f. On June 3, 2014, she observed a Delivery Enhancement Engagement Team Supervisor ("DEET") ("D2") looking inside her postal vehicle;
g. On June 4, 2014, she asked three questions during a meeting led by another supervisor, and D2 interjected, "since you are special, I will have to train you after [the meeting]," resulting in ridicule by several coworkers, during and after the meeting, which D2 did nothing to stop;
h. On June 10, 2014, she was issued two PDIs for her parking the day before;
i. On June 10, 2014, she became aware that Management asked a customer about her performance;
j. On June 11, 2014, Management denied requesting customer input, and later that day, she observed Management pull into the parking lot where she was taking her break, then drive away, causing her to feel threatened;
k. On July 12, 2014, a supervisor told her that she "needed prayer" and "you got issues" when Complainant parked her personal vehicle in the usual space of a supervisor she knew was on vacation, and pointed out that there were no formally assigned parking spaces.
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which the AJ granted in the Agency's favor over Complainant's objections.
In reaching her decision, the AJ found that the record developed during the investigation established the following facts:
Complainant named her second level supervisor, the Postmaster ("PM") (Filipino, brown, Catholic, female, 58), and her third level supervisor, the District Manager ("DM") (white, Christian, male, 48) along with multiple Customer Service Supervisors, as the responding management officials ("RMOs") in her complaint. She also named three RMOs outside her chain of command, all members of a Delivery Enhancement Engagement Team ("DEET").
From May 2014 through the relevant time frame, DEET-trained postal employees were working on site to "improve operations" at the High Point Main Post Office. The named RMOs were DEET Supervisor-in-Training ("D1") (white, Christian, male, 45), his trainer, a Supervisor, Customer Service on detail from the Agency's Greensboro Office, ("D2") (white, Baptist, female, 31), and D2's supervisor, the Head of the Carrier Enhancement Team ("CET") ("D3"), (female, other bases not provided). 3
On June 9, 2014, D1 and D2 observed Complainant violate Agency safety policy when she parked her postal vehicle by pulling into a parking space instead of backing into it. They parked close by and D2 instructed D1 to speak with Complainant about the violation. Complainant was still in her vehicle, taking her lunch break. She was eating, and her bible was out, as she was also engaged in prayer with her sister over her cell phone. When D1 approached Complainant to discuss the safety violation, he saw her looking at her cell phone, but alleges that he did not realize that she was on her lunch break, engaging in a religious practice.
By Complainant's account, D1 interrupted her four times, attempting to discuss the safety violation even though she told him she was on her lunch break. D2 explained that she directed D1 to speak with Complainant because discussing safety violations with employees was part of his DEET training. D1 alleges that he initially walked away when Complainant said she was on her lunch break, but D2 sent him back, reasoning that it was OK for him to interrupt Complainant's lunch break because his purpose involved a safety matter. Complainant filed a grievance, and was reimbursed $19.00, wages for time spent talking about work matters during her lunch break. Complainant also initiated the instant complaint, believing that D2 singled her out because she was an "easy target" for discipline based on her appearance--particularly her race, gender, and age-which caused Management to assume she "would not dare talk back."
Complainant alleges that Management subjected her to ongoing bullying and intimidation, prior to, and after, the June 9, 2014 incident. Complainant decided to pursue an EEO complaint, as she was particularly offended and upset when D1 interrupted her while praying, after she said she was on her lunch break. While she acknowledges that she did not know for sure if D1 was aware of her religion, Complainant points out that she had her bible in plain view, so he could have assumed she was Christian. Other intimidating incidents included PM's verbally aggressive responses when Complainant did not have her badge readily available during a December 2013 uniform inspection, on the morning of May 27, 2014, when PM saw her with a juice bottle at her station and that evening, when she returned without completing her route. D2 also singled Complainant out and humiliated her by calling her "special" during a meeting on June 4, 2014.
Both PM and D2 issued multiple Pre-Disciplinary Interviews ("PDI") to Complainant, who asserts that she received more PDIs than the other employees because of her membership in protected classes. She cites a coworker ("C1") (white, European and Germen descent, Christian, male, 51), a City Carrier, with whom she was friendly, but who she believes was treated more favorably as a white man. She states that C1 is "verbally and emotionally explicative" and his actions are "displayed daily [to] all" including the named RMOs; yet unlike her, C1 is "treated respectfully," and to Complainant's knowledge, C1 has not received a PDI.
Complainant also compares herself to a Mail Processing Clerk, ("C2") (African/Arab, Sudanese descent, Muslim, male), who she speaks with regularly. According to Complainant, C2 filed an EEO complaint naming PM as an RMO, alleging that PM denied him permission to use the restroom. Complainant explains that like her, C2 "would just like to be treated equally and respectfully." Complainant also names her supervisor ("S1") (female, bases not disclosed) as a comparison employee. Complainant recounts that on June 4, 2014, she saw D2 and D3 speak with S1, and immediately afterward, S1 "removed herself from the workroom floor and remained under a doctor's care for two weeks" as the stress caused by D2 and D3 elevated her blood pressure.
The AJ found that Complainant failed to establish a prima facie case in Claim 1, and her harassment allegations in Claim 2 were not severe and pervasive enough to establish a hostile work environment, because, among other things, they described isolated incidents and Management acting within the scope of its duties.
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.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (rev., Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). When reviewing a decision de novo, "the Commission will issue its decision based on the Commission's own assessment of the record and its interpretation of the law." Chap. 9, � VI.B. The de novo standard requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker. Chap. 9, � VI.A.
In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus.
On appeal, Complainant has not identified any specific facts in dispute, nor has she offered additional supporting evidence that a hearing is necessary. Regarding her assertion that the AJ's decision contains "numerous [unspecified] date and statement errors and [unspecified] incorrect indications," we reiterate that this decision is based on a de novo standard of review. In other words, while we have considered the AJ's decision, our findings are based on our own thorough assessment of the investigative report which includes Complainant's detailed affidavit and supporting witness statements, as well as both parties' submissions.
Claim 1
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Assuming, for the sake of argument, that Complainant could show that the Agency did not offer a legitimate nondiscriminatory reason for its actions, she still lacks the evidence to establish a prima facie case. The facts before us do not reasonably give rise to an inference of discrimination, and she has not provided a "similarly situated" comparator employee to establish that she was treated less favorably because of her membership in a protected class. To be considered "similarly situated," all relevant aspects of the comparative employee's work situation must be identical or nearly identical, to that of Complainant, including, but not limited to reporting to the same supervisor, performing the same job function, and working the same schedule. See Cantu v. Dep't of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006); Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002). Complainant's proffered comparators, C1, C2, and C3 are not "similarly situated" to her because they do not meet these criteria.
Although we find insufficient evidence of discrimination for Claim 1, we will consider the June 9, 2014 incident as background information for the harassment allegation in Claim 2.
Claim 2
To prove her harassment claim, 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 her membership in protected classes. 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); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (June 18, 1999). Here, Complainant has not established either element.
Complainant has not provided any evidence, other than her own statements, that Management's actions, as described in Claim 2, were motivated by discrimination based on her race, color, religion, sex or age. Additionally, the incidents Complainant describes are not hostile and abusive enough to be considered harassment under our statutes. Rather, Claim 2 describes common workplace occurrences, and isolated incidents.
Common Workplace Occurrences
It is well established that routine work assignments, instructions, and admonishments, do not rise to the level of harassment because they are common workplace occurrences. See Salvadore K. v. Dep't of the Air Force, 0120150104 (Dec. 2, 2016) citing Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Common workplace occurrences also include increased monitoring of an employee's work activity. See Gormley v. Dep't of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (a complainant's allegation that her supervisor monitored her work duties and time in and out of the office than other employees amounted to common workplace occurrences). We have also found that a supervisor questioning an employee about her job duties and performance to be a common workplace occurrence. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). We note that while an employee may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved. Dewitt L. v. Dep't of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016) citations omitted.
Claims 2.b, 2.e, and 2.h, which reference pre-disciplinary interviews ("PDIs"), describe "routine admonishments and instructions" (penalty overtime, timely completion of routes, and vehicle safety). Complainant does not dispute the content of the PDIs, but contends that she is disproportionately targeted for PDIs. This is not supported in the record. Also, two management officials within separate chains of command, each issued Complainant two PDIs, for a total of four within a month. We do not find this so excessive as to constitute harassment, especially given that PDIs are not disciplinary actions. The PDIs notify Complainant of her noncompliance with Agency policy and regulations pertaining to "day to day operations." In 2.h specifically, even though the parking lot was empty, and Complainant simply pulled into a shady spot for her lunch break, D1 and D2 determined that Complainant violated the Agency policy to prevent "unnecessary backing." It is not the function of this Commission to instruct a supervisor on how to administer and enforce its policies.
Claims 2.f, 2.i, and 2.j describe D2 monitoring Complainant's work performance. Even when considered with the PDIs and the June 9, 2014 incident in Claim 1, D2's actions of considering Complainant's work vehicle (2.f), asking a customer about Complainant's work performance (2.i), and pulling into the parking lot where Complainant was parked taking her break (2.j) amount to common workplace occurrences, not harassment. Complainant's allegation that D2 denied asking a customer about her (2.i) is not supported in the record, as she asked DM and D3, not D2 about the incident. We acknowledge that evidence in the record indicates that D2 may have selected Complainant specifically for an observation. However, Complainant has not offered evidence to connect such a decision to her membership in a protected class. D2 acted within her discretion as a supervisor, and functioning within her role on DEET.
Isolated Incidents
The Commission has repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. For example, the Commission held that allegations that supervisor had "verbally attacked" a complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim. Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996). Similarly, the Commission has held that allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees, causing her embarrassment and humiliation, were insufficient to state a harassment claim. Banks v. Health and Human Serv.s, EEOC Request No. 05940481 (Feb. 16, 1995).
Claims 2.a, 2.c, and 2.d all name PM as the RMO. Based on the timing, we find 2.a, which occurred approximately six months prior to the rest of Complainant's harassment allegations constitutes an isolated incident. We also consider Claims 2.c and 2.d, to be an isolated incident as they both occurred on May 27, 2014, and concerned the same issue, Complainant's timeliness completing her route.
Claim 2.g names D2 as the RMO. On June 4, 2014, Complainant asked multiple questions during a meeting conducted by S1, and D2 interjected "since you are special, I will have to train you after [the meeting]." According to one witness statement, all the carriers went quiet and said "whoa." Complainant feeling humiliated immediately left and went to the bathroom. She heard laughter and coworkers. When Complainant went back out to case her mail route after the meeting was over, several coworkers mocked her, asking her if she rode the short bus and where was her helmet and knee pads to ride the short bus. The record contains three signed affidavits by witnesses that heard the comments. Complainant alleges that D2 heard the comments and did nothing to stop them. Complainant states in the record that PM and DM lacked authority to discipline D2. Complainant appears to have addressed the incident through mediation and through the grievance process. While D2's conduct is concerning, we find it to be an isolated incident because this is the only allegation naming D2 as the RMO. Moreover, there is no evidence that Complainant was targeted because of her race, color, sex, religion, or age.
Claim 2.k concerns a supervisor ("S3") who Complainant does not name as an RMO anywhere else in her complaint, and who is not within Complainant's chain of command. On July 12, 2014, Complainant parked in a spot where a supervisor who was on vacation usually parked, and S3 told Complainant she could not park there, because it was reserved for supervisors; Complainant responded that there were no reserved spaces, S3 said that "[Complainant] knew where [the supervisors] were parking." Complainant then referenced parking rules, and S3 responded, "you need prayer" to which Complainant replied "yes, thank you" and then S3 said "no, you got issues." As Complainant has not raised any other allegations concerning S3, or alleged that Management failed to take prompt effective action when notified of the harassment, we find Claim 2.k constitutes an isolated incident, not harassment.
Additional Allegations on Appeal
On appeal, Complainant appears to raise new generalized allegations of harassment, against herself and other employees by the same RMOs, describing it as "systemic" and "continued" since June 9, 2014. Because these claims were not raised in this complaint, we cannot adjudicate them here. If Complainant wishes to pursue new claims of harassment that she personally experienced, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's 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.
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. 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 13, 2018
__________________
Date
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 We clarified the allegations based on Complainant's affidavit.
3 The record does not clarify the relationship between DEET and CET, and Complainant appears to use them interchangeably.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162643
11 0120162643