Brigette L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120170052 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brigette L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120170052 Agency No. 4C-250-0018-15 DECISION Complainant timely 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 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. ISSUE PRESENTED The issue presented is whether the Agency subjected Complainant to discrimination and a hostile work environment on the bases of race (African-American), disability, and reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible Distribution Window Clerk, PS-06, at the Agency’s Post Office in Rocky Mount, Virginia. 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. 0120170052 2 Complainant was supervised by the Supervisor of Customer Services (Caucasian) and the Officer- in-Charge (OIC) of the Rocky Mount Post Office (Caucasian). According to Complainant, on September 26, 2014 and January 9, 2015, she became very busy and overwhelmed with customers while working as a Window Clerk. Report of Investigation (ROI), at 153. Complainant recalled that she rang the bell to request assistance, as she was instructed to do when three or more customers are at the counter. Id. Complainant averred, however, that the OIC of Rocky Mount and the Supervisor of Customer Services did not provide her with the assistance that she requested on these two dates. Id. Complainant also averred that a coworker placed an All-Purpose Container (APC) in front of the bathroom door while she was in the bathroom. Id. at 158. Complainant believed that the coworker was aware that she was in the bathroom and intentionally blocked the door in order to make it difficult for her to exit. Id. Also, according to Complainant, on December 8, 10, 14, and 20, 2015, the OIC of Rocky Mount and the Supervisor of Customer Service changed her start time from 6:00 a.m. to 7:30 a.m. Id. at 162. Further, according to Complainant, when one of her coworkers did not open the Window on time, the OIC of Rocky Mount went to the workroom floor and loudly yelled her (Complainant’s) name. Complainant maintained that she was blamed for the window not opening on time that day, and is usually blamed when the window is not opened on time. Id. at 181. Complainant believed that management routinely disrespected her in front of her coworkers in an effort to embarrass her. Id. at 171. Complainant, at her request, was subsequently scheduled to be reassigned to the Post Office in Penhook, Virginia. Before Complainant’s scheduled reassignment, the OIC of Rocky Mount made the half hour drive to the Penhook Post Office and met with the OIC of the Penhook Office. Id. at 270-71. Therein, according to the OIC of Penhook, the OIC of Rocky Mount provided her with negative information about Complainant. The negative information provided included that Complainant documents every interaction, files grievances, and that she could not be trusted with personal information. Id. The OIC of Penhook attested that the OIC of Rocky Mount told her to warn the Carriers to keep their personal lives to themselves because Complainant might find a way to use the information against them. Id. The OIC of Penhook stated that she cried because everything the OIC of Rocky Mount told her was overwhelming. Id. The OIC of Penhook then warned coworkers that Complainant had filed grievances. On January 7, 2015, Complainant contacted an EEO Counselor and filed an EEO complaint on April 23, 2015, alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race (African-American), disability, and reprisal for prior protected EEO activity when: 1. On September 26, 2014, and January 9, 2015, she was not given assistance as her coworkers were; 0120170052 3 2. On December 16, 2014, a coworker placed an All-Purpose Container (APC) in front of the bathroom door when she was in the bathroom and management did nothing; 3. In November and December 2014, management changed her work schedule from a 6:00 a.m. start to a 7:30 a.m. start; 4. On January 7, 2015, she was made to do her coworker’s job because her coworker did not want to do it; 5. On multiple dates, management instructed her to do things exactly the way two of her co-workers do, and these two coworkers harass her daily; 6. On multiple dates, management talked negatively about her to her coworkers; 7. On multiple dates, management consulted with her coworker to make up her work schedule; 8. On January 16, 2015, and other dates, management disrespected her in front of coworkers; 9. On March 13, 2015, the OIC [of the Rocky Mount Post Office] went to her new duty station and told management not to be nice to her and spread lies about her. Following 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 EEOC Administrative Judge (AJ). 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. The Agency found, with regard to claim 1, that Complainant did not establish that there were other clerks available to assist her on the two dates at issue. The Agency noted that it was unlikely that management would have intentionally inconvenienced customers as alleged by Complainant. The Agency also found that Complainant did not establish that management was aware of the APC incident with respect to claim 2. In addressing claim 3, the Agency found that work schedules do not show that there was a change in Complainant’s start time, as she alleged. The Agency further found that Complainant did not show that claims 4 and 5 occurred, as the Supervisor of Customer Services and the OIC denied Complainant’s allegations. The Agency additionally noted, with regard to claim 6, that clerks would come to the Supervisor of Customer Service to complain about Complainant, and found no evidence that such discussions about Complainant were based on her protected classes. As for claim 7, the Agency observed that this matter was based on operational needs and not Complainant’s race or disability. The Agency additionally found, with regard to claim 8, that the OIC of Rocky Mount was simply frustrated that the window would not be open on time, but she did not blame Complainant. 0120170052 4 The Agency further observed, with respect to claim 9, that the OIC of Rocky Mount only traveled to the Penhook Post Office to warn about Complainant because she was concerned that Complainant may file more grievances upon her reassignment. The Agency found that the OIC of Rocky Mount did not mention Complainant’s prior EEO complaints and only made reference to Complainant’s prior grievances. The Agency found that the OIC of Rocky Mount took no action based on Complainant’s EEO activity. The Agency found that Complainant did not show that management’s actions were severe or pervasive enough to rise to the level of a hostile work environment, and that Complainant did not show any evidence of discriminatory or retaliatory animus on management’s part. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, maintains that she established a prima facie case of reprisal, and established evidence of per se reprisal as well. Complainant states that she filed an EEO complaint in March 2013 when she was not promoted due to her race, and she also engaged in prior protected EEO activity when she obtained “limited duty†as an accommodation for her medical disability. She states that she engaged in further protected EEO activity when she wrote a letter to the Supervisor of Customer Services discussing the hostile work environment, and when she specifically told the Supervisor and the OIC of Rocky Mount that they were creating a hostile work environment for her. In addition, Complainant maintains that she engaged in protected EEO activity when she filed grievances regarding the hostile work environment. Complainant maintains that the OIC of Rocky Mount’s action of driving 30 minutes to the Penhook Post Office to warn that she had a history of filing grievances was clearly in reprisal for her prior protected EEO activity. Complainant states that the OIC of Rocky Mount and the Supervisor of Customer Service took actions to interfere with her job performance, which included ignoring her requests for assistance when her line exceeded three customers. Complainant states that other employees were provided with such assistance. In addition, according to Complainant, a coworker placed an APC in front of the bathroom door in an intentional attempt to prevent her from exiting the restroom. She also alleges that management required her to perform other coworkers’ duties, changed her work schedule, and intentionally intimidated her because of her EEO activity. Complainant additionally states that the Supervisor of Customer Service attempted to issue her a 7-day suspension for her medical related absences against the advice of Labor Relations. Complainant asserts she was nevertheless issued a suspension for unsatisfactory attendance and improper conduct for requesting leave and calling in sick on February 2, 5-7, 2015.2 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, 2 We note that Complainant’s allegations with respect to the suspension were not accepted for investigation, and Complainant does not challenge the Agency’s acceptance of the claims for investigation on appeal. Thus, we decline to address the matter further herein. 0120170052 5 § 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 lawâ€). ANALYSIS AND FINDINGS Hostile Work Environment To establish a prima facie case of hostile environment harassment, a complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. § 1604.11. In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create an abusive working environment.†Harris, 510 U.S. at 21. 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). In the instant case, Complainant asserts that the OIC of Rocky Mount and the Supervisor of Customer Services continuously subjected her to a hostile work environment. Complainant’s examples of the harassing behavior, include a change in her work schedule from a 6:00 a.m. start to a 7:30 a.m. start; not providing assistance when her line exceed three customers; asking her to perform other coworkers’ duties; and being disrespected, among other things. While Complainant has cited to various incidents where she felt that management’s actions were adverse or disruptive, we find that Complainant failed to show that these incidents were the result of unlawful discrimination. The record is clear that Complainant had a contentious relationship with the management of the Rocky Mount Post Office. However, the Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.†Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). As such, we find that Complainant has not shown that the events with regard to claims 1-8 were severe or pervasive enough to rise to the level of a hostile work environment. Moreover, there is simply no evidence in the record that management was motivated by discrimination or retaliatory animus with respect to these claims. 0120170052 6 With respect to claim 9, while it may have not been ideal for the OIC of Rocky Mount to warn employees of the Penhook Post Office that Complainant had a history of filing grievances, there is no evidence in the record that the OIC of Rocky Mount was motivated by Complainant’s EEO activity in doing so. The record reflects that the OIC of Rocky Mount only specifically warned of Complainant filing grievances and made no mention of Complainant’s EEO activity. We note that the OIC of Rocky Mount cautioned the Penhook OIC that Complainant could file a grievance about clerk and Postmaster hours. While the OIC may have said things like, “watch your back,†“Complainant writes everything down,†and recommended not to share personal information with Complainant, among other things, the record only shows that such language was made with regard to Complainant filing grievances and not engaging in EEO activity. In particular, one witness said that the OIC warned that Complainant “looks for anything to file a grievance on,†among other things. But the witness did not mention that the OIC had said anything about Complainant’s EEO activity. The OIC of Penhook also only averred that the cautioning was about Complainant’s grievances and did not say that Complainant’s EEO activity was mentioned. Consequently, we find that Complainant did not show that the OIC’s visit to the Penhook Post Office was motivated by retaliatory animus, as she alleged. As Complainant withdrew her request for 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 the Agency’s conduct was based on her protected EEO activity or other protected classes. 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. 0120170052 7 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. 0120170052 8 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation