0120152715
12-21-2017
Catheryn P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (New York Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Catheryn P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120152715
Hearing No. 520-2015-00102X
Agency No. 4B105002212
DECISION
On August 1, 2015, 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 July 17, 2015, 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 Complainant established that the Agency subjected her to disparate treatment and a hostile work environment on the bases of sex (female), perceived disability (mental) and reprisal (prior EEO activity), in connection with the actions and conduct of Management from February 2012 through September 2012.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Arlington Delivery Distribution Center facility in Poughkeepsie, New York. On April 4, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), perceived disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973. The Agency framed Complainant's claims as follows:
1. On February 29, 2012, management failed to adequately respond to her concerns/reports regarding a customer who was stalking her;
2. On June 13, 2012, and continuing, she was subjected to her work being closely monitored and timed;
3. On June 16, 2012, and continuing, her supervisor continually failed to address inappropriate and offensive workplace conduct, including but not limited to male employee joking about "B.Js";
4. On August 24, 2012, management verbally demanded that she provide medical documentation in support of her absences, rather than requesting such documentation on a leave form upon her return to work, as was standard practice;
5. On August 30, 2012, she was placed on Leave Without Pay (LWOP) status for her absence on August 24, 2012;
6. On August 31, 2012, she was informed that she was on sick leave restriction for thirty (30) days but was not provided with written notification of the restriction, despite multiple requests;
7. On August 31, 2012, her supervisor referred her to the Employee Assistance Program (EAP) without explanation or justification;
8. On September 5, 2012, her manager demanded that she sign a pay adjustment form, and when she refused, he indicated that he was going to adjust her time without her authorization and in violation of Agency policy; and,
9. On September 14, 2012, her Postmaster demanded that she provide medical documentation related to her absence on August 24, falsely accused her of abusing her sick leave, and threatened to charge her as Absent Without Leave (AWOL).
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. Specifically, the Agency found that Complainant failed to show that Management's conduct was based on her sex, disability or reprisal; Management articulated legitimate, nondiscriminatory reasons for their conduct and Complainant provided neither sufficient evidence, nor convincing argument to show that the Agency's reasons were unworthy of belief.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among several things, that there are a number of errors in the background information set forth in the Agency's final decision, including the full chronology of her original request for a hearing and the failure of the administrative judge to move this case forward, which led to her request for an Agency decision. Complainant also asserts that two postal inspectors and a police officer in the local municipality, charged with investigating the alleged stalker, have worked to produce an "inaccurate" and insufficient investigation, and that the one postal inspector's past dealings with Complainant's husband led to the Agency's retaliation against her in this matter.
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").
ANALYSIS AND FINDINGS
Disparate Treatment (Claims 5, 6 and 8)
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 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). Upon review of the record, we find that Complainant did not establish that the Agency subjected her to disparate treatment on the bases of sex, disability or reprisal.
First, assuming arguendo that Complainant established a prima facie case on the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the responsible manager (S1) indicated that he in fact placed Complainant on LWOP for her absence on August 12, 2012, because she had not provided the medical documentation to support her absence. With respect to Complainant being informed that she would be placed on sick leave restriction for thirty (30) days, S1 indicated that he reviewed Complainant's attendance issues with her but did not place her on restriction. S1 further indicated that he informed her that placement on sick leave restriction was an option if attendance issues continued.
On the claim that Complainant was required to sign a pay adjustment form, S1 indicated while he did not recall the details of his discussion with Complainant regarding signing a pay adjustment, the process of ensuring that employees received an adjustment required signatures of the person making the adjustment and the person for whom the adjustment was being made. The Agency confirmed that Complainant did not sign the form and no adjustment was ever made.
We find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for sex, disability and reprisal discrimination. In her supporting statement, Complainant points to errors made in the background details of her claims, but we find that the alleged errors had no impact on the underlying substance of the claims.
Disability - Disparate Treatment (Claim 7, Referral to EAP)
In this case, we assume arguendo, but without so finding, that Complainant is a qualified individual with a disability (or regarded as disabled, as Complainant indicated that she believed that Agency viewed her as disabled when Management referred her to EAP), and entitled to coverage under the Rehabilitation Act. Nonetheless, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this regard, S1 stated that he never regarded Complainant as disabled and only mentioned EAP as a resource because of Complainant's attendance issues.
Hostile Work Environment (Claims 1, 2, 3, 4, 7 and 9)
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (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 (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 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, at 6 (Mar. 8, 1994) (Guidance).
At the outset, we find that, regarding claims 5, 6 and 8, a finding of a hostile work environment is precluded by our determination that Complainant did not 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). We also find that the remainder of Complainant's hostile work environment claims, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. We find that the interactions between Complainant and management were, for the most part, work-related interactions and we find no evidence that they were based on her protected bases. Furthermore, we have consistently held that the discrimination statutes are not civility codes. Petty slights, minor annoyances, and simple lack of good manners occur in the workplace. Not every unpleasant or undesirable act which occurs constitutes a discrimination violation. See Shealey v. Equal Employment Opportunity Comm., EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009)). The hostility must be connected to a prohibited basis, which has not been established here.
For instance, with respect to the Agency's response to Complainant's claim that she was being stalked by a customer, whom she believed had a camera in his window and was taking pictures of her, the Agency indicated that the Postal Inspectors were limited in what they could require of a private citizen and their right to use a camera on their property. We find that Complainant did not demonstrate that discriminatory animus was involved in any of the Agency's actions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish that the Agency subjected her to disparate treatment and hostile work environment on the bases of sex, disability or reprisal. Therefore, 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 finding that Complainant did not establish discrimination as alleged.
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
_12/21/17_________________
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.
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0120152715