0120170822
04-20-2018
Belia A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Belia A.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170822
Hearing No. 410-2010-00116X
Agency No. 4H310002209
DECISION
On December 30, 2016, 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 December 1, 2016, 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., 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge (AJ) properly found that Complainant failed to demonstrate that she was subjected to discrimination and harassment based on race (Caucasian), sex (female), age (49), disability, sexual orientation and reprisal for prior EEO activity when:
(1) in May 2008, her request for an alternate schedule, and potential alternate work site was denied;
(2) in August 2008 management failed to effectively communicate Complainant's extended absence resulting in less than adequate coverage during her absence;
(3) Complainant's private medical information was shared;
(4) in October 2008 rumors were spread about Complainant stalking and sexually harassing another employee;
(5) on October 29, 2008, while at the office attending a meeting, she found her office packed up and ready for relocation;
(6) in October 2008, Complainant was made aware that management never investigated the allegations that she was a threat;
(7) since November 2008, Complainant was not granted access to the District's T-Drive which she needed to complete her assignments; and
(8) on December 10, 2008 Complainant was threatened by her team leader that action would be taken against her if she brought allegations of discrimination in the form of an EEO investigation.
BACKGROUND
Complainant started working with the Agency in July 2007 as a Homeland Security Coordinator at the Agency's Inspection Services office in Macon, Georgia. In May of 2008, Complainant advised her supervisor that her mother was having surgery, and she requested to work from her parents' home from June 3 to June 6 to care for her mother and father. The record reflects that Complainant was permitted to identify Agency locations that she could work out of which would make it easier for her to access her parents during her mom's recovery.
Complainant was hospitalized on August 17, 2008, after attempting suicide. Complainant alleges that the management did not advise the managers in the South Georgia District that she was hospitalized and would be absent from work. As a result, Complainant alleges there was inadequate coverage for her during that time, resulting in a 2.5-month backlog.
Complainant testified that she directed her personal friend to contact her "best friend" at work (E1) and advise her Complainant was in the hospital suffering from depression after a suicide attempt. Complainant contends that one of the main reasons she wanted to alert E1 of the situation was because she sent her a suicide note, and she wanted E1 to know she was still alive. Complainant contends that E1 disclosed the specifics of her situation to another employee.
Complainant testified that after her meeting in preparation for her return to work, she noticed the reaction of others who saw her exiting the building. She contends that these reactions were due to their knowledge of her suicide attempt - Complainant immediately assumed that her medical record had been shared.
Complainant was absent from work August 17, 2008 through November 6, 2008. When she visited her office on October 29, 2008, she saw that the contents of her office had been packed up for relocation. Complainant stated that she had been told that her office would be relocated somewhere "within the District." After returning to work, Complainant was moved to a building in South Macon.
On January 22, 2009, Complainant contacted the Agency's EEO Office to allege discrimination and harassment and she was referred to an EEO Counselor and Dispute Resolution Specialist. After an initial interview with the, Complainant was advised of the Agency's ADR (Alternative Dispute Resolution) Program, but she elected to pursue traditional EEO Counseling. On March 26, 2009, Complainant filed a formal complaint alleging discrimination and harassment as articulated in the statement of "Issues Presented" above. A formal investigation was conducted, and after the report was issued, the Agency filed a motion for summary judgment. On August 18, 2011, the AJ issued a Decision granting the Agency's Motion for Summary Judgment. On September 23, 2011, the Agency issued a Final Agency Action implementing the AJ's Decision. Complainant appealed, and on February 11, 2015, the Office of Federal Operations (OFO) issued a Decision vacating the Agency's Final Action, finding that summary judgment was improper and remanded the matter back to the AJ for a hearing. A hearing was held on July 29, September 2, and September 5, 2016. The AJ issued a decision finding that Complainant failed to establish discrimination as alleged. 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.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's final order implementing the AJ's decision. Complainant contends that there were credibility issues with several Agency witnesses. Complainant argues that despite the AJ's ruling, record evidence establishes that: (1) her medical information was improperly shared with other employees; (2) she was the only employee moved from the District office in 2008; (3) her medical records were not properly maintained; and (4) her harassment claims were not investigated.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment & Reprisal
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII, Rehabilitation Act, and ADEA cases alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must 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. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, disability, sexual orientation and reprisal, we find that the Agency articulated a legitimate, non-discriminatory reason for each of the actions taken by Agency management. While Complainant's specific request to work from her parents' home was not approved, she was allowed to work from an Agency facility other than her regular work location, to accommodate her desire for ready access to her parents. Complainant was asked to identify another location nearby that would "work out" for her needs, and she admitted in her EEO Affidavit that she was effectively accommodated. Nothing in the record supports Complainant allegation that inadequate coverage resulted in a 2.5-month backlog of work. Additionally, aside from making this broad allegation, Complainant never explained the nature of the backlog.
With respect to Complainant's allegation that her medical information was improperly disclosed, the hearing testimony showed that Complainant and E1 worked for separate and distinct administrative divisions of the Agency, and that Complainant was not in her chain of command because E1 is not a manager. Several other employees testified similarly that that the information was shared only in a personal context, and not in the context of any official duties. The record reflects that contrary to Complainant's assertion, she was not the only non-District employee whose office was moved to the South Macon facility. More than 50 employees were moved, and the Agency conducted a training for these employees at the Macon facility. While there were some initial concerns immediately after Complainant started at the new location, management took the necessary steps to ensure that the effect of these concerns on Complainant's ability to work were minimal. For example, when Complainant was having trouble accessing the Agency's T-drive, she was provided with a key to the Inspection Service office in the District Office building where her office was previously located so that she could access the T-Drive.
None of the testimony supports the contention that Complainant's medical documentation was ever improperly disclosed or stored. In each instance where someone has knowledge of Complainant's illness, it appears that Complainant was the original source. We find Complainant's allegations that her harassment claims were not investigated to be without merit. Record evidence establishes that no one outside of Complainant reported any allegations of Complainant stalking or sexually harassing anyone. The alleged victim testified that she never raised this as an issue.
While Complainant does not raise it on appeal, the Commission determines that her reprisal claim lacks merit. Complainant initially alleged that her supervisor threatened her with discipline if she engaged in EEO activity, however, her description of the incident in her EEO affidavit never indicates that the supervisor mentioned EEO activity, or discipline. A review of the record finds insufficient evidence to show that any adverse action was taken or threatened as a result of prior or impending EEO activity.
Complainant failed to demonstrate that any conduct on the part of the Agency was based on any discriminatory animus, or taken because of her prior EEO activity. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). We find no evidence of unlawful motivation on the instant facts.
Harassment/Hostile Work Environment
With respect to any contention by Complainant that he was subjected to a hostile work environment with respect to any of the actions by Agency management, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of 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 that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). We concur with the AJ's findings that the allegations complained of in the instant matter did not rise to the level of actionable harassment.
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 adopting the AJ's decision finding that Complainant failed to establish that she was discriminated against, or subjected to discriminatory harassment as alleged.
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 forfiling 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
_4/20/18_________________
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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