Candi R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 18, 20180120170689 (E.E.O.C. Oct. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candi R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120170689 Hearing No. 440-2013-00156X Agency No. 4J606018712 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 11, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 (FAD). ISSUES PRESENTED Whether the FAD properly found that Complainant did not establish she was subjected to disparate treatment and discriminatory harassment on the basis of her disability when: (1) on various dates in August and September 2012, Complainant requested and was denied auxiliary assistance and/or overtime; (2) on August 30, 2012, Complainant was injured and subsequently not provided a CA- 1; (3) on September 1, 2012, Complainant submitted a CA-1 which was not processed and submitted to the Office of Workers’ Compensation Programs; (4) on October 1, 2012, Complainant was threatened with a write up; (5) on October 22, 2012, Complainant was required to provide medical documentation; and (6) on November 1. 2012, Complainant was in the swing room and told to clock out. 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. 0120170689 2 BACKGROUND At the time of the events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Agency’s Chicago-Otis Grant Collins Station facility in Chicago, Illinois. The Agency’s FAD thoroughly discussed the facts in the record, and the instant decision incorporates them by reference as stated. On January 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of disability as articulated in the statement of Issues Presented above. 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 August 25, 2016, the AJ assigned to the case remanded the complaint to the Agency for issuance of a FAD based on Complainant’s failure to follow his orders. The Agency issued a FAD 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 instant appeal followed. 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 oCf 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”). ANALYSIS AND FINDINGS Disparate Treatment In analyzing a disparate treatment claim under the Rehabilitation Act, where the Agency denies that its decisions were motivated by Complainant's disability and there is no direct evidence of discrimination, we apply the burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, in order to establish a prima facie case, Complainant must demonstrate that: (1) she is an “individual with a disability”; (2) she is “qualified” for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34 (D.C.Cir. 1999). Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). The burden of production then shifts to the Agency to articulate a legitimate, non-discriminatory reason for the adverse employment action. In order to satisfy her burden of proof, Complainant must then 0120170689 3 demonstrate by a preponderance of the evidence that the Agency’s proffered reason is a pretext for disability discrimination. Id. For purposes of this decision, we assume without specifically deciding that Complainant is a qualified individual with a disability who was subjected to adverse employment action. Additionally, we find that the Agency articulated legitimate, non-discriminatory reasons for the incidents Complainant cites to establish her claim, and find that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus. The record reflects that Complainant would have submitted a PS Form 3996 requesting auxiliary assistance to her immediate supervisor, and that this request would have been approved or disapproved based on mail volume. The record indicates that Complainant’s requests were denied because her office time was not productive. Complainant’s immediate supervisor (S1) states that Complainant cased less than expected without providing a reason; was frequently off her case; was late; frequently socialized; and never made her leaving time. Additionally, Complainant was not on the Overtime Desired list, nor was her name on the sign-up sheet for overtime. After consideration of all these factors, a determination was made to deny Complainant’s requests. With respect to Complainant’s allegations that her CA-1 form was not properly processed, S1 contends that Complainant’s failure to follow Agency procedures caused the processing issue. Typically, when a supervisor enters an “on the job injury” in the system, it automatically generates a CA-1 form. Complainant did not report her injury immediately, and instead sent a relative to pick up her form which she attached to a written statement of the injury. If Complainant had reported the accident/injury to her supervisor along with a written statement, the incident would have been entered in the system and a CA-1 would have been automatically generated. Sometime on September 1, 2012, Complainant submitted her CA-1 form. The record reflects that a supervisor submitted the signed form to the OWCP the same day. Regarding Complainant’s claims that she was improperly asked to submit medical documentation, the record reflects that in response to Complainant’s frequent “call in” status, the system automatically requested medical documentation. According to the attendance policy, Complainant was required to provide medical documentation any time she exceeded three consecutive days of calling in. Complainant’s call in frequency was regularly calculated at 3 times per week. At the time that Complainant was asked to “clock out” she was observed by a manger sitting in the swing room and not performing any work. While Complainant still had duties to fulfill, she was advised that she should have completed them immediately after delivering, and not after taking a break in the swing room. In an effort to encourage efficient staffing, Complainant was instructed to end her tour because she wasn’t working. Nothing in the record, or submitted on appeal by Complainant, demonstrates that the Agency’s actions were in any way motivated by discriminatory animus, or were pretext for unlawful discrimination. Our review of the record confirms the Agency’s assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant’s performance and conduct in the workplace. 0120170689 4 The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Harassment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23. An abusive or hostile working environment exists “when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the condition of the victim’s employment.” Meritor, 477 U.S. at 65. Usually, unless the conduct is pervasive and severe, a single incident, or group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep’t of Labor, EEOC Request No. 05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996). An alteration to an employee’s working conditions exists if a tangible, discrete employment action is taken, e.g., hiring, firing, transfer, promotion, non-selection, or the Agency’s actions were sufficiently severe and/or pervasive to create a hostile work environment. The harasser’s conduct is evaluated from the objective viewpoint of a reasonable person in a complainant’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The Agency concluded that Complainant failed to establish a claim of harassment because she failed to show that that she was subjected to severe or pervasive treatment such as to create an unlawful work environment on any basis. Instead, the incidents complained of here appear to have been reasonable actions taken by Complainant’s supervisor and other management officials in the course of discharging their supervisory responsibilities. The incidents identified were in the nature of common interactions and employment actions that would occur between a supervisor and a subordinate employee in the workplace. We agree with the Agency’s findings in the FAD that the incidents, considered together and taken as a whole, did not rise to the level of a discriminatorily hostile workplace. 0120170689 5 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal by Complainant and the Agency, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 0120170689 6 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 October 18, 2018 Date Copy with citationCopy as parenthetical citation