0120171388
09-14-2018
Assunta V.,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
Assunta V.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120171388
Hearing No. 410-2015-00074X
Agency No. 4K-300-0257-13
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 January 27, 2017, 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.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not prove she was subjected to unlawful discrimination or harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Ralph McGill Carrier Annex in Atlanta, Georgia.
On December 22, 2013, Complainant filed an EEO complaint in which she alleged that the Agency harassed and discriminated against her on the bases of race (African-American), national origin (Northern Pennsylvania and Virginia), color (Black), age (born in May 1966), and in reprisal for prior protected EEO activity when:
1. On August 16, 2013, she was placed on Emergency Placement in an Off-Duty status;
2. On September 17, 2013, she was issued a Seven-Day Suspension dated September 16, 2013;
3. On September 23, 2013, she was placed on Emergency Placement in an Off-Duty Status;
4. Since August 2013 and ongoing, she has not been afforded equitable overtime opportunities;
5. From October 10, 2012, through July 2013, she was not afforded equitable overtime opportunities;
6. On November 18, 2013, she was issued a 14-Day Suspension;
7. On December 2, 2013, management refused to give her a copy of her CA-1 form, and when she received a copy from the union, it had been altered;
8. On December 16, 2013, her job was threatened;
9. On December 23, 2013, she brought in Christmas gifts but was sent home and threatened to be put on Emergency Placement;
10. On December 26, 2013, she was issued a Seven-Day Suspension;
11. On January 23, 2014, she was issued a Letter of Warning (LOW) dated January 22, 2014;
12. On February 7, 2014, she was issued a Seven-Day and 14-Day Suspension;
13. On an unspecified date, management changed routes improperly;
14. On an unspecified date, her PS Form 3996 request for overtime was denied; and
15. On an unspecified date, her scanner did not pair to her cell phone on a daily basis, requiring her to ask for assistance.
Additionally, Complainant alleged that she was subjected to retaliatory harassment when:
16. On March 7 and 8, 2014, she was placed on Emergency Placement in an Off-Duty Status;
17. On May 23, 2014, she was placed on Emergency Placement in an Off-Duty status;
18. On or around June 26, 2014, she was issued a Notice of Removal; and
19. On an unspecified date, she was charged Leave without Pay (LWOP) instead of Family and Medical Leave Act (FMLA).
After 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 requested a hearing but the AJ denied the hearing request on the grounds that Complainant failed to comply with her Scheduling Notice and Order. The AJ then remanded the complaint to the Agency, and 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 unlawful harassment or discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant maintains that she was denied an opportunity for a hearing, which deprived her of the opportunity for discovery and to cross examine witnesses. Complainant also reiterates the allegations contained in her complaint. The Agency does not present any arguments on appeal.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
AJ's Dismissal of Hearing Request
The record reveals that, on July 9, 2015, the AJ issued a Scheduling Notice and Order that scheduled a pre-hearing conference on August 21, 2015, and a hearing on September 4, 2015. The Notice required parties to submit a pre-hearing report by e-mail by August 19, 2015, that contained the following: 1) a concise statement of the matter at issue; 2) a concise chronological statement of the facts to be proven at the hearing; 3) list of all material facts to which the party is willing to stipulate; 4) list of proposed witnesses, setting forth for each witness the full name, current job title, former job title (if relevant), work telephone number, and a brief, but thorough, proffer as to the witness's testimony sufficient to establish that the testimony is relevant and not repetitious; 5) a list of exhibits the party intends to offer into evidence at the hearing during its case, in addition to those already in the investigative report, and a copy of each such exhibit; and 6) the amount and type of compensatory damages sought and the evidence used to prove such damages. The Notice warned parties that failure to comply with any of the AJ's orders could lead to sanctions, including dismissal of the complaint.
On August 5, 2015, Complainant sent a prehearing report that contained designation of counsel, statement of claims, a statement of relief sought, and material facts to which Complainant would stipulate, but it did not contain a witness list and proffer about witness testimony. The AJ then directed Complainant to submit a revised prehearing report that contained the missing witness information. On August 21, 2015, Complainant submitted a list that contained 19 witnesses but did not indicate expected testimony. The AJ then rescheduled the prehearing conference to August 24, 2015, to allow Complainant to provide the missing information, but Complainant again failed to provide the requested information.
The AJ reported that, on August 17, 2015, Complainant's representative revealed he could not talk to any witnesses because he was under Office of Inspector General (OIC) investigation. On August 31, 2015, Complainant submitted a list of proposed witnesses with brief descriptions of potential testimony. Complainant also asked for more time to talk to witnesses, and the AJ canceled the scheduled September 4, 2015 hearing.
On September 21, 2015, the AJ held a status conference with the parties. At the conference, the parties agreed that the Agency's representative would talk to the Station Manager about Complainant's desire to speak to witnesses at the Howell Mill Station. Later that day, the Agency's representative e-mailed the Station Manager and requested that he allow Complainant to contact witnesses concerning their proposed testimony. Additionally, on or about September 28, 2015, the Agency informed Complainant that she could call the Station to speak to proposed witnesses.
In an Order to Show Cause dated June 1, 2016, the AJ reported that Complainant had "not submitted anything, or made any sort of communication." The AJ therefore ordered Complainant to show cause within 10 calendar days why she failed to comply with the Notice and Order and to prosecute this case. Complainant responded to the Order to Show Cause on June 8, 2016, and in her response, she mainly asserted that the Agency representative had not assisted her with contacting witnesses for testimony.
We note that an AJ may sanction a party for failure to cooperate pursuant to the provisions of 29 C.F.R. � 1614.109(f)(3). However, sanctions must be tailored to appropriately address the conduct of the party being sanctioned. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8. 2000). Sanctions may be used to deter the non-complying party from similar conduct in the future and provide an equitable remedy for any harm incurred by the opposing party. Id. If a lesser sanction would suffice to deter conduct and equitably remedy the opposing party, an AJ may be abusing his discretion by imposing a harsher sanction. Id.
In this case, we determine that Complainant was given ample opportunity to provide the requested list of potential witnesses and their testimony. Although Complainant maintains that the Agency did not assist her in accessing witnesses, it is undisputed that the Agency arranged for Complainant to have access to witnesses through the Station Manager. To the extent that Complainant maintains that an OIG investigation precluded her from contacting witnesses, the record reveals that the OIG investigation concluded on August 28, 2015, which meant Complainant could contact witnesses after that date. We find that Complainant did not comply with the AJ's orders. Complainant's representative had been warned that sanctions for failure to respond to the AJ's orders could include dismissal of Complainant's hearing request. Therefore, we find the AJ did not abuse her discretion when she dismissed Complainant's request for a hearing. See Ward B. v. Dep't of the Army, EEOC Appeal No. 0120151448 (Nov. 22, 2017) (no abuse of discretion where AJ dismissed hearing request after notifying Complainant and his attorney that failure to comply with AJ's orders could result in sanctions, including dismissal of the hearing request).
Procedural Dismissals
On August 18, 2014, the Agency dismissed claims 1, 2, 10, 11, 12, 17, and 18 on the basis of mootness. The Agency concluded that Complainant was made whole on these matters through the grievance process, and there was no reasonable expectation that the alleged matters would recur. Complainant does not challenge these dismissals on appeal. As such, we exercise our appellate discretion and decline to review the Agency's dismissals. Nevertheless, we address the merits of these incidents below because they were investigated.
Additionally, Complainant alleges that she was subjected to national origin discrimination, specifically because she is from "Northern Pennsylvania/Virginia." Northern Pennsylvania is a region within a state of the United States, and Virginia is state within the United States. The Supreme Court has stated, "The term 'national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 88 (1973). The term "national origin" does not apply to an individual's state affiliation. See Parker v. U.S. Postal Serv., EEOC Appeal No. 0120090491 (June 4, 2010). Consequently, we find that Complainant's claim that she was subjected to national origin discrimination is dismissed for failure to state a claim.
Disparate Treatment and Harassment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, the complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
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).
In this case, for purposes of analysis, and without so finding, we assume arguendo that Complainant established a prima facie case of discrimination under a disparate treatment analysis. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. For example, regarding claim 1, the Customer Service Manager (CSM) stated that Complainant was placed in off-duty status for failing to observe safety rules that created a risk of harm to herself and others. Regarding claim 2, CSM stated that Complainant was issued a seven-day suspension because she became insubordinate with a supervisor on the route and when she returned to the station. She stated that Complainant had been given numerous opportunities to cease and desist her unbecoming behavior. Regarding claim 3, Complainant stated that Complainant was again placed on off-duty status because she was observed in the Postmaster's office without authorization and kept demanding to see the Postmaster. She further stated that Complainant then indicated that she was "going Postal."
Regarding claims 4 and 5, CSM stated that Complainant worked overtime weekly and refused to work her day off on several occasions. She further stated that Complainant cannot work overtime on other routes because she works overtime on her own route. CSM stated that quarterly overtime opportunities are equitable, and CSM posts the overtime tracking weekly and reviews it with the union to ensure equitable overtime. A supervisor (S2) stated that Complainant has been given overtime to assist on other routes as well as routes on her "T-6 run." Regarding claim 6, CSM stated that Complainant was given a 14-day suspension because she was observed in the Postmaster's office on September 20, 2012, without authorization, and several witnesses felt threatened by her actions.
Regarding claim 7, the Supervisor of Customer Services (S1) stated that this allegation is not true, and that Complainant refused to sign the form CA-1 after she reported she was injured. S1 further stated that the CA-1 form is online, which allows management to fill in the blanks. He stated that he typed in Complainant's name and other employee information as needed and then printed the form for Complainant to complete and gave it to her. S1 stated that Complainant then said management will not obtain access to her personal medical information and refused to sign the form, although the form only gave the Department of Labor access to medical records, not management. He stated that Complainant was also given a standard affidavit to complete. S1 stated that he decided not to give Complainant a copy of the CA-1 form because employees are not given a copy if they are not claiming an accident or are refusing to complete the form.
Regarding claim 8, in response to Complainant's claim that S1 told her that she would find herself out of a job for Christmas if she said anything else during an altercation, S1 stated that he did have any knowledge of such an incident. Regarding claim 9, CSM stated that Complainant was not put on Emergency Placement; she was sent home for the day and placed on administrative leave because she refused to load and depart for her route. Regarding claim 10, CSM stated that Complainant was suspended because, since November 2013, she failed to deliver the mail on the walking portion of her route. She further stated that management has given her office and street assistance and several direct orders to deliver the walking portion first, but she refused to follow instructions.
Regarding claim 11, CSM stated that Complainant was issued a LOW because of unsatisfactory performance, unauthorized overtime, and Managed Service Points (MSP) failures. Regarding claim 12, CSM stated that Complainant was suspended for failing to follow instructions and willful delay of mail. Regarding claim 13, CSM stated that adjustments were made in routes because assigned routes were not eight hours of work. Regarding claim 14, CSM stated that Complainant was denied overtime when the workload did not warrant overtime.
Regarding claim 15, S1 stated that he has shown Complainant several times how to pair the telephone to the scanner, and Complainant lost the back cover to the telephone and was unable to connect the paired telephone until management reordered a new telephone. He stated that Complainant knew how to pair the phone to a scanner, but she just pretended to have issues to be difficult and waste time. A Manager of Customer Services stated that there was no reason for Complainant's cell phone not to pair, but just to appease Complainant, her scanner was given to another Carrier, who did not have a problem pairing the device. She further stated that she paired the phone for Complainant and it worked fine.
Regarding claim 16, S1 stated that Complainant was placed on off-duty status in March 2014 because, on March 7, 2014, she was not where the system reflected, and when he found her, she was "outrageous" and began to talk loud. He stated that he then instructed Complainant to report back to the station immediately, and she drove back to the station erratically. S1 stated that, upon returning to the station, Complainant was still loud and outrageous. He stated that he then told Complainant to give him her scanner, keys and telephone because he was sending her home for the rest of the day, and to report to work the next day.
Regarding claim 17, CSM stated that Complainant was placed on off-duty status in May 2014 because Complainant told a supervisor she was not going to ride with her and that she was getting "smart" with Complainant. CSM further stated that Complainant then called police, and the Area Manager arrived and instructed Complainant to deliver with the supervisor riding with her, but Complainant asked the Area Manager if he was also getting smart with her. CSM stated that Complainant refused to deliver the route, and she told Complainant to stop yelling or she would be sent home, but Complainant did not stop yelling.
Regarding claim 18, the Manager of Customer Services stated that Complainant was removed for improper conduct, including her failure to obey orders, misbehavior, threatening behavior, and lack of cooperation in investigations. Regarding claim 19, CSM stated that Complainant faxed and called to request FMLA leave, and she was mailed FMLA paperwork. She further stated that Complainant was approved for FMLA leave until July 24, 2018, and was charged Absent without Leave (AWOL) when she did not show up for work on July 29, 2014. CSM also stated that Complainant requested annual leave, but had no leave to cover her absence; therefore, she had to charge Complainant LWOP.
After a thorough review of the record, while it is clear that Complainant does not agree with the Agency's actions regarding her discipline, removal, and other issues, we determine that she did not demonstrate that the Agency's reasons were pretext for discrimination. Moreover, there is also ample evidence that Complainant often responded to disagreements in a rather caustic manner that escalated, rather than diffused, situations. See Myron S. v. General Services Administration, EEOC Appeal No. 0120140902 (Sept. 23, 2016). Consequently, we conclude that the Agency properly found that Complainant did not prove she was subjected to unlawful harassment or disparate treatment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
CONCLUSION
Accordingly, 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 decision for the reasons set forth in this 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
__9/14/18________________
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.
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