0120182029
10-05-2018
Bobbye C.,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
Bobbye C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120182029
Hearing No. 510-2017-00206X
Agency No. 4G335014016
DECISION
On May 29, 2018, 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 April 25, 2018, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant was subjected to discrimination and harassment based on disability (unspecified)2 and reprisal (prior EEO activity) when, in April 2016, she was denied overtime opportunities; on May 3, 2016, she was charged Absent Without Official Leave (AWOL); on May 6, 2016, management threatened to call the police on her; and on May 20, 2016, her requested sick leave was changed to Leave Without Pay (LWOP). 3
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Sand Lake Post Office facility in Orlando, Florida.
Overtime
Complainant stated that during the beginning of the year she did not specifically request overtime because she was under the assumption that an employee who was on restrictions was not authorized to work overtime; and, therefore, unable to sign up for it. She declared that when she became aware that other employees that were on restrictions were working overtime, she specifically asked her supervisor, S1, for the reasons why she was not able to work overtime, and other employees were. Complainant testified that he responded that she should talk with M1, the manager. Record evidence revealed that Complainant worked 11.24 hours of overtime in April. She averred that she was denied overtime opportunities the last week in April 2016, and on numerous other occasions by M1 and S1.
Complainant stated that M1 approached her in her work area and asked her if she was working overtime hours. She stated that she responded yes and told him that she only worked when it was really busy in the lobby towards the end of the day or when S1 asked her to stay. She declared that later that same day, S1 approached her and told her that she was not able to do any more overtime pursuant to M1's orders. M1 testified that Complainant was not entitled to overtime because she did not sign the Overtime Desired List (OTDL).
AWOL
Complainant was charged with being AWOL on May 3, 2016. After a grievance meeting she began feeling ill and told a supervisor that she needed to leave. She completed a leave request form. Complainant had over 100 hours each of sick leave and annual leave. M1 testified that it was his decision to charge Complainant with AWOL, on May 3, 2016, because she walked out on her job without requesting to be absent or providing documentation. M1 stated that the AWOL had been changed to sick leave once Complainant provided proper documentation. The record contains evidence in the form of pay adjustments confirming M1 authorized the conversion of AWOL to sick leave for May 3, 2016, because Complainant provided documentation to justify sick leave usage.
Threat to call Police
Complainant testified that on May 6, 2016, she came into the station with a Form CA-2 to have it processed. She claimed that S2, another supervisor, refused to process the form and began to yell at her to get out of the station. Complainant stated that she told S2 that she could not put her out of the station. Complainant maintained S2 stated that she was not allowed in the station when she was not on the clock. Complainant declared that she told S2 that she could not put her out of her workplace, and that she would leave when her business was done. S2 accused her of creating a hostile environment and indicated that she would call the police to remove her from the station. Complainant stated that she told S2 that she was the hostile one and that there was no need to continue to yell at her. Complainant stated that S2 again threatened to call the police repeating that she did not belong in the station. Complainant testified that S2's final statement to her was, "bye [Complainant's first name] or I'm calling the police." Complainant averred that she then left the facility.
S2 testified that Complainant came to the facility to drop off medical documents and demanded that she sign them. S2 stated that when she did not sign the medical documents, Complainant became loud and hostile. S2 declared that she took Complainant's medical documentation and told her she no longer had a need to be in the facility. S2 testified Complainant was off the clock and had created a hostile environment. S2 averred that Complainant was asked to leave the facility four times but refused. S2 testified that Complainant's disability and prior EEO activity were not factors with regard to this claim.
LWOP
Complainant claims that her sick leave was changed to LWOP for May 3 - 24, 2016. She stated that she had the leave to cover her absence. Complainant further stated that the Agency retained her on AWOL until she produced medical documentation upon her return.
M1 testified that he personally inputted Complainant's leave status as LWOP for pay periods 10-2016 and 11-2016 because she had not provided proper medical documentation as instructed when she left on May 3, 2016, and was charged AWOL. He testified once Complainant provided the proper documentation, her leave status was changed to sick leave. The record contains pay adjustment forms that support his testimony. He further stated that he had no idea about her prior EEO activity and that her disability was not a factor in her sick leave being changed to LWOP.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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 discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the Agency ignored its own rules, provided incorrect and/or inaccurate descriptions of the actions taken by the Agency's various managers, and generally lacks credibility in investigating the actions taken against Complainant.
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 absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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, 441 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 Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for each of the actions discussed above. The burden now shifts to Complainant to establish that the Agency's explanation for its actions were a pretext. We are not persuaded by Complainant's arguments that she was subjected to administrative actions that were handled in a manner different from incidents involving other employees at the Agency. In this regard, we find no persuasive evidence that her disability or prior EEO activity played a role in the denial of overtime opportunities, or her being placed on AWOL or LWOP, or her being threatened with the police.
As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that management's conduct was based on her disability or prior protected EEO activity.
Harassment
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a 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).
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 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
__10/5/18________________
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.
2 In her affidavit, Complainant testified she had Chondromalacia Patellae; tear of medial meniscus of the knee; right sprain of knee, lateral collateral ligament right knee.
3 Initially the complaint also continued an additional allegation, Claim 1. This allegation was dismissed, pursuant to 29 C.F.R. �1614.107, as being a collateral attack on a negotiated grievance settlement agreement. The Agency's dismissal of this allegation is AFFIRMED.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120182029
5
0120182029