0120142569
04-13-2016
Bonny R.,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
Bonny R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142569
Agency No. 4K300003813
DECISION
On July 16, 2014, Complainant filed an appeal from the Agency's July 11, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether the Agency discriminated against and subject Complainant to a hostile work environment on the bases of race (African-American), color (Black), disability (complications following three knee surgeries), and reprisal (prior protected EEO activity) when:
1. On September 14, 2012, her supervisor (S1) ordered Complainant to continue to work after a dog bite, refused to take her to the hospital for treatment, and stated in the report she did not see a dog bite;
2. On unspecified date(s), Complainant's manager remarked in front of her coworkers, that she could not do her route, she is unsatisfactory, and that the Agency is paying her too much money;
3. On unspecified date(s), she is continually required to violate her medical restrictions while working routes 3826 and 3821;
4. On November 21, 2012, she was issued a Letter of Warning for Failure to Maintain Regular Attendance;
5. On unspecified date(s), her manager required her to provide copies of her medical information; and
6. On unspecified dates, and on or around November 26, 2012, her medical records were left on the supervisor's desk for others to see.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Dunwoody Branch in Atlanta, Georgia. On September 14, 2012, Complainant was bitten on her left arm by a dog while delivering mail on her route. Complainant claims that when she called S1 to inform her of the incident, S1 instructed her to complete her route. When Complainant returned to the post office, she showed S1 her injury. Complainant alleges that S1 refused to take her to the hospital because she was scheduled to go on vacation. Complainant returned to work the next day and provided medical documentation of her dog bit to another supervisor (S2). On September 19, 2012, S1 completed a Supervisor's Report for the incident and noted that Complainant's arm "did not look fresh" and that S1 saw "no marks on arm old scab." Additionally, S1 wrote that Complainant did not call her after this incident but returned to the post office at 5:45p.m.
On November 21, 2012, S1 issued Complainant a Letter of Warning for Failure to Maintain Regular Attendance. The letter cited six instances of unscheduled sick leave between September 17 to November 3, 2012, and one instance when Complainant arrived to work 35 minutes late. The letter also noted that S1 conducted an investigative interview on November 19, 2012, but that Complainant did not attend. S1 noted that Complainant stated to her, "go ahead and do what you want I'm not coming to the meeting." Complainant's union representative attended for her.
Complainant alleges that on or around November 26, 2012, S1 stated to her, "I see you have been out for an upper respiratory infection." Due to this statement, Complainant believed that S2 left her medical records on his desk for others to see.
On March 30, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against and harassed her on the bases of race (African-American), color (Black), disability (complications following three knee surgeries), and reprisal (prior protected EEO activity) when:
1. On September 14, 2012, S1 ordered her to continue to work after a dog bite, refused to take her to the hospital for treatment, and stated in the report she did not see a dog bite;
2. On unspecified date(s), Complainant's manager remarked in front of her coworkers, that she could not do her route, she is unsatisfactory, and that the Agency is paying her too much money;
3. On unspecified date(s), she is continually required to violate her medical restrictions while working routes 3826 and 3821;
4. On November 21, 2012, she was issued a Letter of Warning for Failure to Maintain Regular Attendance;
5. On unspecified date(s), her manager required her to provide copies of her medical information; and
6. On unspecified dates, and on or around November 26, 2012, her medical records were left on the supervisor's desk for others to see.
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 (AJ). Complainant requested a hearing but on June 10, 2014, the AJ dismissed the hearing request on the grounds that Complainant did not comply with the AJ's Acknowledgement Order when she failed to provide a response to the AJ or the Agency. The AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The final Agency decision (FAD) concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
As an initial matter, the Agency determined that Complainant had not shown a prima facie case of discrimination based upon race, color, disability and reprisal for prior EEO activity. In regards to Complainant's discrimination claims based on race and color, the Agency found that Complainant is a member of a protected group for race and color. The following individuals were named as comparators:
1. C1: Letter Carrier, Caucasian, white, unknown disability status, unknown EEO activity;
2. C2: City Carrier, African-American, Black, no disability, prior EEO activity;
3. C3: City Carrier, African-American, Black no disability, no prior EEO activity;
4. C4: City Carrier, no information regarding race, color and disability status, no prior EEO activity;
5. C5: City Carrier, no information regarding race, color and disability status, no prior EEO activity;
6. C6: City Technician, no information regarding race, color and disability status, no prior EEO activity; and
7. C7: City Technician, no information regarding race, color and disability status, prior EEO activity.
Complainant alleged that C1 was treated more favorably than she was because S1 drove him to the hospital after he was bitten by a dog. However, S1 denied driving him to the hospital and stated that C1 drove himself. Accordingly, the Agency found that C1 was not treated more favorably than Complainant. The Agency determined that C2, C3, C4, and C5 held different positions and were unsuitable comparators. Additionally, it found that while C6 and C7 held the same position as Complainant, the record did not show that they had similar attendance issues or ongoing medical restrictions and found them to be unsuitable comparators. While the Agency noted that showing comparative evidence was not the only way to establish a prima facie case of discrimination, it found that Complainant had not presented any evidence that affords a sufficient basis from which to draw an inference of discrimination. As such, the Agency concluded that Complainant had not established a prima facie case of discrimination based on race and color.
In regards to Complainant's reprisal discrimination claim, the Agency found that she has not shown that S1 and S2 were aware of her prior EEO complaints. Additionally, the agency found that even if S1 and S2 were aware of her prior EEO activity, Complainant could not show a causal link because her most recent EEO case had closed approximately seven years prior to the complained of activity in this current complaint. Complainant also did not show that she was treated less favorably than a similarly situated employee who did not engage in EEO activity. Accordingly, Complainant had not established a prima facie case of reprisal discrimination.
Additionally, the Agency found that Complainant had not provided any medical documentation to establish that she is an individual with a disability. S2 stated that the only medical information he received pertained to the September 14, 2012, dog bite incident, which only resulted in a temporary condition. S1 stated that Complainant gave her medical documentation years ago related to her prior knee replacement surgeries. However, since Complainant did not provide documentation regarding her complications from the past knee surgeries, the Agency could not determine that she is an individual with a disability and found that she did not establish a prima face case of discrimination based on disability.
The Agency then assumed, for the sake of argument, that Complainant had established a prima facie case of discrimination, but found that management had articulated legitimate non-discriminatory reasons for its actions. For claim 1, S1 stated that Complainant did not call her when the dog bit her around 3:30p.m., but that she learned of the incident when Complainant returned at 5:45p.m. S1 stated that when she asked Complainant why she did not call, she responded, "I knew you were busy so I just kept on working." S1 also stated that Complainant's arm looked as if she had a mosquito bite that was scratched open and was healing. S1 stated that Complainant filed a police report telling them that she was bitten by a gray Dalmatian. However, when the police went to the address provided, they found a golden retriever puppy instead. S1 stated that the father of the owner of the puppy used to work in the Office of Inspector General and that they pressed charges against Complainant for filing a false police report, which led to her arrest.
In regards to claim 4, S1 stated that she issued the Letter of Warning because it was warranted when Complainant failed to come to work on the listed dates. S1 further stated that all employees are expected to have regular attendance and appropriate action is taken for those who do not have regular attendance. For claim 6, S2 stated that he did not know anything about Complainant's medical records being left on his desk for others to see.
The Agency then found that Complainant had not shown pretext for discrimination. It noted there is no evidence to indicate that S1 or S2 made any decision based on Complainant's race, color, disability or in reprisal for her prior EEO activity.
The Agency also found that Complainant had not shown that she was subject to a hostile work environment based on her race, color, disability or in reprisal for her prior EEO activity. While one witness (W1) stated that S2's management style was to "bully" and "intimidate," W1 also stated that he was treated the same way by S2.
In regards to claim 2, Complainant claimed that the statements about her unsatisfactory performance demeaned her but S2 stated that he did not make these statements and S1 stated that she never heard S2 make these statements. Neither W1 nor the other witness who provided a statement (W2) supported Complainant's allegation that S2 made these statements. In claim 3, Complainant alleged that she complained about the violation of her medical restriction, she was demeaned. However, S1 and S2 stated that Complainant was not required to violate her medical restrictions. And in response to claim 5, S2 stated that Complainant was only required to provide medical documentation regarding any restrictions resulting from the dog bite. The Agency concluded that the incidents Complainant raised were minor, transitory and ephemeral in nature, and do not come anywhere near the level of seriousness and severity necessary to show that she was subject to a hostile work environment.
On July 16, 2014, Complainant filed the instant appeal of the Agency's decision but did not submit any arguments in support of her appeal. The Agency did not file a response to Complainant's appeal.
ANALYSIS AND FINDINGS
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").
Disparate Treatment
Generally, claims of disparate treatment are examined under the 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back 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, 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Reprisal
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process).
Assuming, arguendo, that Complainant has established a prima facie case of discrimination based on race, color, disability and reprisal for prior EEO activity, we find that the Agency has articulated legitimate, non-discriminatory reasons for its actions. In claim 1, Complainant alleges that she was discriminated against based on race, color and in reprisal for prior EEO activity when S1 instructed her to continue working after being bit by a dog, refused to take her to the hospital and then untruthfully stated that she did not see a dog bit on Complainant. S1 denied ordering Complainant to return to work when she called. S1 disputes that Complainant even called her and that she only learned of the dog bite incident after Complainant returned to the post office. She also disputes that Complainant asked her to take her to the hospital. S1 confirmed that she wrote a report noting that she did not see a dog bite on Complainant because what she saw looked like an old mosquito bite.
Additionally, Complainant alleged that S1 accused her of filing a false report, which resulted in her suffering emotionally and financially because she had to take time off work while in jail and hire attorneys to address this matter. However, S1 responded that it was the owners of the dog that allegedly bit Complainant who filed charges against her resulting in Complainant going to jail, not S1.
Complainant alleged that she was treated less favorably than C1 when S1 drove him to the hospital after a dog bit him but S1 denied driving C1 to the hospital. S1 stated that when C1 returned to the post office, she saw blood running down his leg and that he clocked out of work to drive to his doctor for treatment.
In response to claim 4, S1 stated that she issued Complainant the Letter of Warning because Complainant's attendance warranted the letter. Complainant argues that she had requested leave in advance on some of the dates listed but has not provided any evidence that she had done so, despite stating that she received approval. S1 also noted that C2 and C3 were issued letters for three or more unscheduled absences from work and that there were no employees who engaged in similar conduct as Complainant but were not issued letters.
In regards to claim 5, Complainant alleged that S1 required her to provide copies of her medical information on an annual basis. S1 stated that Complainant provided documentation years ago related to her knee surgeries but that she is not required to submit updates. S2 stated that Complainant only provided medical documentation related to her dog bite and confirmed that he asked for the information to identify any restrictions she may have, resulting from the incident. For claim 6, S2 stated he did not know anything about Complainant's medical information allegedly left open on his desk.
S1 and S2 denied factoring into their decisions Complainant's race, color, disability or prior EEO activity and Complainant has not provided any evidence to show that the Agency's proffered reasons were pretext for discrimination.
Harassment
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) she belongs to 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 statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Complainant alleges that she was subject to a hostile work environment based on disability and in reprisal for prior EEO activity when S2 stated that Complainant can't do her route, her performance is unsatisfactory and that the Agency pays her too much money; and when her managers violated her medical restrictions by requiring her to work routes 3826 and 3821.
In claim 2, Complainant alleged that S2 made these statements in front of coworkers, which was demeaning and served to create a hostile work environment. Complainant also alleged that S1 made similar comments. S2 denied making the alleged statements and witness statements do not support that either S1 or S2 made such comments. While W1 provided a statement that his opinion is that S2 spoke to Complainant in a threatening manner a few times, W1 did not state that he witnessed any of the alleged statements made in the instant complaint. W2 also did not witness S1 or S2 making these comments.2
In claim 3, Complainant alleged that her managers harassed her when they continually required her to violate her medical restrictions by working routes 3826 and 3821. S1 and S2 both stated that they did not require Complainant to work those routes and that she chose her routes.3 S1 stated that Complainant bid on the routes that she believed she could work and if she is violating her medical restrictions, it is by her own choice.
The record does not support that S1 or S2 made the alleged statements or that they required her to violate her medical restrictions. Even if Complainant was subject to this alleged unwelcome verbal conduct, we find that she has not shown that it was involving or based on her protected classes. Additionally, Complainant has not shown that this conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant has not shown that she was subject to a hostile work environment based on disability and in reprisal for prior EEO activity.
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 finding that Complainant has not shown that she was discriminated against or subject to a hostile work environment based on race, color, disability and in reprisal for prior EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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
__4/13/16________________
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 Three additional named witnesses were contacted to provide statements but they did not submit any statements.
3 S1 and S2 both noted that the only modification to Complainant's job was the exclusion to deliver mail to one building due to a court mandated restraining order against Complainant.
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