0120170607
09-26-2018
Billi D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Billi D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170607
Agency No. 1G391001912
DECISION
On November 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 October 28, 2016, 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.
ISSUES PRESENTED
Whether Complainant established that she was harassed based on her race (African-American), sex (female), age (45), and reprisal for prior EEO activity
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk GS-6 at the Agency's Medgar W Evers General Mail Facility in Jackson, Mississippi. On August 20, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), age (45), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967, when she was harassed by her Manager and Supervisors.
Complainant stated that between May 11, 2012 and continuing, the manager (M1) would ask her supervisor (S1) what Complainant did all night. She stated that M1 asked about her more than other employees, or did not question the whereabouts of other employees. Complainant stated that she would leave the working area to pick up mail from the bundle sorter or may have been on break. She stated that her supervisor knew "where she was."
The Agency states that M1 was unaware of Complainant's prior EEO activity before October 2012, and that Complainant failed to prove he was aware of that activity. The Agency also contends that the evidence averred by Complainant does not support a finding that the Agency actions about which she complained were adverse, and thus, did not support a claim for retaliatory discrimination.
On August 24, 2012, Complainant claimed that M1 walked through her work area multiple times, looking at her, repeatedly asked S1 where she was and blocked her access to the time clock. She stated that he positioned himself so that she would have to go around him. She stated that she never informed him of her concerns, nor asked him why he was blocking her access to the time clock. She stated that she "didn't feel safe to say anything." However, she "averred that M1 "denied" her allegations.
On October 31, 2012, Complainant states that M1 put his hand on the backside of her shoulder while she was speaking to someone else, and asked about what work she performed during the night. Complainant stated that she believed that M1 did not have a right to touch her, that she was not claiming that her age was a factor in this incident, nor did she file a grievance on this matter.
On July 1, 2013, M1 appointed an employee (female) to monitor Complainant. The employee would usually come into Complainant's area twice a shift, look at her, engage in minor activities, not speak to her, and then leave.
Complainant also stated that Supervisor (S1) would move Complainant from her principle assignment, while other employees were not subjected to that treatment. She stated that S1 would beat on her Register Room door as a "police officer" would do, in "an intimidating and threatening manner, "as if she had no right to do her job.
Complainant also stated that she was often removed from her principle assignment, while other employees were not. When she asked about why she was being moved, she would be told that "there was not enough work for her to do."
Complainant stated that on July 1, 2013, she was asked by M1 to help out in the Express Mail Room. She maintained that it was because of her prior EEO activity because she was told that M1 "wanted her moved."
Complainant stated that on August 18, 2013, another manager, M2, and another supervisor, S2, stood outside the restroom while she was in it, but walked away as she came out. She stated that M2 was near the time clock when she clocked out for lunch talking to a male employee. Complainant stated that when she went to the break room, she heard M2's voice and when she turned around to look, she noticed that he was looking at her while talking to another employee. Complainant testified she believed M2 was discussing ways to intimidate and harass her with S2, based on the way a co-worker stared at her. Complainant asserted she was humiliated to know they heard her while she used the restroom, and felt their conduct violated the Collective Bargaining Agreement, as well as several other Postal Service policies.
Complainant stated that on August 19, 2013, she had been instructed to leave her principal assignment area to go to the 393 room at 1:10 am. She stated that after she closed out the register bag, another employee was working the mail, and she asked her supervisor if she wanted her to work with the other employee in the set up. She stated that her supervisor informed her that he did not know the other employee was there, so Complainant could return to the Registry room.
Complainant explained that she was instructed to go back to the 393 room later in the evening and then was given confusing instructions regarding working and dispatching mail. She stated that there were some issues with the registry mail. She had to research the problem and locate the other employee who was involved with the registry mail. Complainant stated that she had four bags to check with over 35 pieces to check in, sort out, and prepare for the dispatches. Complainant stated that she was disrupted and "discombobulated" all night from running back and forth. She stated that S1 watched her walk back and forth as the events unfolded, and yet claimed that she did not have enough to do. Complainant further stated that she discussed these incidents with a co-worker who also appeared to her to be "discombobulated."
The Agency stated that moving employees was a decision made by supervisors and is based on what the supervisor needs to efficiently process mail. The Agency's CBA with the Postal Service permits the moving of employees. The Agency also stated that trained and skilled employees, like Complainant, are frequently moved because of the need for their expertise. According to the Agency, the work that Complainant was asked to perform was not outside of her principle assignment area and "was a standard responsibility of her bid assignment." Complainant was considered a valued employee and was never disciplined for any actions set forth in the complaint. Finally, the Agency argues that there was no evidence that would support a causal relationship between Complainant's moves her prior EEO activity.
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant proved that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not file a brief.
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 law").
Disparate Treatment
To prevail in a disparate-treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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). Complainant can do this by showing that the proffered explanations are unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer's articulated reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, age, and reprisal, we find that the Agency presented legitimate, nondiscriminatory reasons for its actions regarding Complainant's being moved around to perform a variety of duties. Complainant did not provide evidence that the Agency's reasons were a pretext for discrimination.
Harassment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. The evidence does not establish that Complainant was treated less favorably that similarly situated employees. The evidence presented by Complainant did not establish that the incidents occurred because of her race, sex, age, or protected EEO activity. The incidents presented in this case by Complainant appear to be normal workplace instructions, activities and tensions found in a work environment. Further, Complainant failed to demonstrate that the purported harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or an offensive work environment.
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 FAD.
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
__9/26/18________________
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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