0120170441
08-21-2018
Branda M.,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
Branda M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170441
Agency No. 4K-220-0013-16
DECISION
On November 10, 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 26, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to disparate treatment and harassment on the bases of national origin (Hispanic, American), religion (Christian), color (brown) and reprisal, as a result of several incidents she alleges occurred between October 2015 and December 14, 2015, when she was separated during her probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE (Postal Support Employee) Sales and Services/Distribution Associate at the Agency's Sterling Main Post Office facility in Sterling, Virginia. On March 14, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic)2, national origin (American), religion (Christian), color (Brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In November 2015, her request to use the restroom was denied;
2. In October 2015, her supervisor referred to her as being "stupid," and "slow."
3. On November 16, 2015, and November 25, 2015, she was verbally reprimanded in front of customers and co-workers;
4. On November 21, 2015, she was instructed to leave prayer service and report to work;
5. On November 30, 2015, her hours were changed and she was informed that she should be available to work seven days a week;
6. On November 30, 2015, her request to review a safety guide was denied;
7. On December 6, 2015, the Postmaster hit her with several parcels that she was processing;
8. On December 9, 2015, she was called at home and questioned as to why she was not at work even though it was her non-scheduled day-off;
9. On December 11, 2015, her request for assistance in performing her duties was denied;
10. On December 13, 2015, after reporting that a co-worker called her a "bitch," management failed to properly address the matter; and,
11. On December 14, 2015, she was separated during her probationary period.
The investigative record reveals that when Complainant was hired as a PSE she was informed that in her support position she was required to be adaptable to a fluid work schedule. In that regard, the Postmaster (PM) testified that Complainant's hours never changed, as she was required to be available when the Agency needed her.
Regarding the alleged denial of Complainant's request to use the restroom, her supervisor (S1) testified that, as she walked by, Complainant made the request while she was serving a customer. S1 responded that Complainant needed to finish attending to her customer before she could go to the restroom, as S1 could not be involved in a monetary transaction during Complainant's interaction with a customer. S1 further stated that Complainant never raised the situation as a concern afterwards.
In another instance during Complainant's work at a service window, S1 intervened to answer a postal customer's question that Complainant should have been able to answer, but could not. In another instance, Complainant came upon two co-workers in a discussion where one called the other a "bitch," whereupon Complainant assumed that the reference was to her. Both workers presented testimony that they were very good friends, often joked with each other in that manner, and explained that their discussion had nothing to do with Complainant. Moreover, when asked if the reference was to her, one of the co-workers told Complainant that it was not and she walked away.
S1 presented testimony that while she discussed Complainant's work performance with her and indicated that Complainant's interactions with customers would improve with time and experience, she never called complainant "slow" or "stupid." S1 further submitted that she contacted Complainant to inform her that she needed to pick up the key to the building and work area for her access to the facility the next day, but was not aware that Complainant was in route to a prayer service, never ordered Complainant to abandon a prayer service to return to work, nor did Complainant indicate at the time of the call that she was about to attend said service.
There was no showing that Complainant informed the Agency of her religious beliefs or any possible conflicts prior to the instant claims. Further, S1 testified that she never knew Complainant's religious beliefs and Complainant never requested an accommodation or time off for religious purposes. Additionally, Complainant presented no evidence of unwelcome conduct attributable to her protected bases of national origin or color, nor has any evidence been presented of EEO activity prior to the events attendant to the instant matter.
With respect to Complainant's allegation that her request to review a safety guide was denied, the record shows that S1 instructed Complainant to stack bulk mailing at each mail carrier case. Complainant placed the bulk mail in such a fashion that the carriers could not access their cases without moving them or stumbling over them. S1 informed Complainant that her placement of the bulk mail created a safety hazard and that someone could get hurt. After the mail carriers complained, the PM testified that he discussed the issue with Complainant, and she asked for guidance on what was safe and what was not safe. The PM referenced an EL-814 safety guide and stated that he intended to give to her, but shortly thereafter the decision was made to discharge Complainant.
While Complainant's formal claim is that the PM hit her with parcels, her affidavit shows that her true allegation is that S1 hit her with parcels. S1 testified that there were a significant number of parcel pallets to be distributed to the carriers and Complainant was working in a dawdling manner. At that time, Complainant responded to something stated by a coworker and the two got into an argument. S1 interceded and informed both employees that there was much work to be done and they needed to "keep throwing the parcels." S1 stated that she assisted and there were a lot of parcels being distributed, but that there was no claim at the time that anyone had been hit by a parcel.
Complainant testified that S1 denied her request for assistance by indicating that she was busy. S1 testified that she did not recall the specific incident, but that she had helped Complainant so many times during her work tours and would never deny helping her employees. The PM testified that he did not believe Complainant was denied assistance when needed and that she never told him that she was denied assistance.
S1 testified that Complainant was terminated during her probationary period primarily because of attendance, availability, dependability, conduct and performance issues. Based on his personal observations of Complainant's work ethic, the PM agreed with S1's assessment.
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 failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted no contentions on appeal. The Agency contends that Complainant failed to establish a prima facie case of discrimination on any bases. The Agency further submits that assuming Complainant had established a prima facie case, Complainant failed to show that the Agency's legitimate, non-discriminatory reason for its actions were pretextual.
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").
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he or 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 804 n.14. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class or engaged in prior protected EEO activity; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class or prior protected EEO activity; (3) the harassment complained of was based on their statutorily protected class or prior protected EEO activity; (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/or was sufficiently material to deter protected EEO activity in the given context; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, � II.B.3 (Aug. 25, 2016).
Assuming, arguendo, that Complainant established a prima facie case of national origin, religion, color and reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions between October 2015 and December 14, 2015. Moreover, Complainant failed to present evidence to show that any Agency action was a pretext for discrimination.
With respect to her work hours, Complainant made no showing that she was scheduled outside of what was expected when she was hired. Additionally, the record supports the Agency's discharge of Complainant based on her performance and lack of work effort.3 Concerning Complainant's overall harassment claim, the record reflects that the incidents were more likely attributable to routine supervision, managerial discipline, and common workplace disputes and interactions.
CONCLUSION
Complainant did not establish that the Agency subjected her to disparate treatment and a hostile work environment based on her national origin, religion, color or reprisal for prior protected EEO activity in connection with the actions of her managers from October 2015 and December 14, 2015. Therefore, based on a thorough review of the record and the lack of contentions on appeal, and matters not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
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
__8/21/18________________
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 The Commission considers the term "Hispanic" to be a characterization of national origin, not race.
3 Where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).
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