0120150178
03-02-2017
Celine D.,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
Celine D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120150178
Hearing No. 430-2013-00079X
Agency No. 4K-280007512
DECISION
On October 20, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's final action 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. 2 For the following reasons, the Commission AFFIRMS the Agency's final action.
ISSUES PRESENTED
The issues presented are whether substantial evidence in the record supports the AJ's decision to: (1) find that the Agency did not subject Complainant to harassment on the bases of race, sex, disability, or reprisal in connection with several incidents from February to June 2012; (2) award Complainant $500 in non-pecuniary compensatory damages for per se reprisal in connection with one incident in June 2012; and (3) not award Complainant any attorney's fees or costs.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible (PTF) City Carrier at the Agency's Salisbury Post Office (PO) in North Carolina. As a result of a 2008 work-related injury, Complainant had a shoulder impairment and certain work restrictions. Complainant contacted an EEO Counselor in May 2012. Subsequently, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment on the bases of race (African-American), sex (female), disability (right shoulder on-the-job injury), reprisal for prior protected EEO activity (prior EEO complaints and May 2012 EEO Counselor contact in the instant complaint) when:
1. On March 20, 2012, the Postmaster (PM) conducted an investigative interview with her about a March 3, 2012, accident;
2. On March 22, 2012, she learned that a Sales Services/Distribution Associate (CW1) from another PO was reassigned to a Full-Time (FT) City Carrier position at the Salisbury PO before her, even though she had more seniority;
3. On March 29, 2012, she learned that a PTF City Carrier (CW2) was converted to a FT City Carrier position before her, even though she had more seniority;
4. On June 27, 2012, during a work meeting, PM:
a. Rejected her documentation for Family and Medical Leave Act (FMLA) leave for June 20-22, 2012 and advised her that her absence would be entered as Leave Without Pay or Absence Without Leave;
b. Promised her a T-6 position3 if she had her work restrictions lifted;
c. Accused her of providing false information to the EEO Counselor in connection with incident 3; and
5. On February 14, February 29, 2012, May 11, and June 5, 2012, management harassed her about her shoulder impairment.
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 Administrative Judge. Complainant timely requested a hearing and the AJ held a hearing on May 21, 2014.
On August 8, 2014, the AJ issued a decision finding no harassment on the bases of race, sex, disability, or reprisal in connection with incidents 1-4b and 5, but finding per se reprisal in connection with incident 4c.
Regarding incident 1, the AJ found that the following events occurred: on March 3, while delivering mail, Complainant's foot fell through a hole which had been covered by a welcome mat on the customer's porch; that same day, she told management that she was not hurt from the accident, declined medical treatment, and continued to deliver mail; on March 5, she informed the management that she went to the emergency room the previous day because of her foot and completed an Office of Workers' Compensation Programs form; from March 5-18, Complainant was off of work; and on March 19, Complainant returned to work. Although Complainant argued that the Agency singled her out for an interview, the AJ found that the Agency proffered evidence that it interviewed other carriers who had work-related injuries. Although Complainant argued that the Agency waited a long time to interview her, the AJ found that it was reasonable for PM to interview her on March 20 because she did not return to work until March 19. Although Complainant argued that PM was aware of her prior EEO complaints because PM previously worked in Labor Relations, the AJ found that PM was unaware of her prior EEO complaints. In so finding, the AJ determined that Complainant's prior EEO complaints did not involve PM, PM's testimony about being unaware of her prior EEO complaints was credible, and her speculation otherwise was unpersuasive.
Regarding incident 2, the AJ found that the Agency proffered documentary and testimonial evidence showing that CW1 was involuntarily reassigned to the position because he had been excessed from his position at another PO. In addition, the AJ found that Complainant did not proffer probative evidence to rebut the Agency's evidence. Regarding incident 3, the AJ found that the Agency proffered documentary and testimonial evidence showing that CW2 was converted at the same time as Complainant. Although Complainant argued that the union steward told her that CW2 was converted before her, the AJ found that her testimony was contradicted by the documentary evidence and the testimony of other witnesses.
Regarding incident 4a, the AJ found that PM reasonably told Complainant that her medical documentation, which consisted of a note from a gynecologist appointment on June 22 and medication refill receipts from a drugstore on June 20, was not sufficient to justify her June 20-22 absences as FMLA absences. In addition, the AJ found that Complainant's gynecologist appointment did not appear to be related to her accepted FMLA claim, which was for her shoulder impairment. Moreover, the AJ found that PM did not single out Complainant because both the union president and the union steward testified that PM asked all employees to justify their absences. Finally, the AJ found that PM did not take any adverse action against Complainant related to those absences because those absences were eventually charged as FMLA leave.
Regarding incident 4b, the AJ noted that PM denied making such a statement. Although Complainant testified that PM made such a statement, the AJ found that her testimony on this incident was not credible. The AJ noted that she found Complainant's testimony, in general, not to be credible because it was often contradicted by documentary evidence and the testimony of non-management witnesses.
Regarding incident 5, the AJ found that the following events occurred: on February 14, PM initially told Complainant that she would be doing certain work the next day, but changed her mind the next day because the work was not within Complainant's restrictions; on February 19, Complainant requested overtime, management asked if her shoulder was hurting and if she needed to stop carrying the mail, but said it would approve the overtime; on May 11, management told Complainant to have her doctor clarify her "work at her own pace" restriction because carriers needed to deliver mail within a certain timeframe; on June 5, management told Complainant to finish a route in four hours, she said she could not do so, management asked her if her shoulder was hurting, she said it was not but she needed to work at her own pace as to not violate her restrictions, and management told her it was going to let PM handle the matter.
Regarding incident 4c, the AJ found that Complainant established per se reprisal. Specifically, the AJ found that PM, during a work meeting, accused Complainant of providing false information to the EEO Counselor. In addition, the AJ found that it was not appropriate for PM to question an employee about the truthfulness of her discrimination allegations during a work meeting and that such an issue was more appropriately determined through the EEO complaint process. Moreover, the AJ found that PM's accusation during the work meeting could potentially chill an employee from participating in the EEO complaint process.
The AJ awarded Complainant $500 in non-pecuniary compensatory damages for the finding of per se reprisal. Specifically, the AJ considered the testimony from Complainant about how she felt when PM brought up her EEO complaint at the work meeting. Complainant stated that she was stunned that PM would raise this matter in front of others, i.e., the Union President. H'rg Tr., at 48-49. According to Complainant, she "felt like a little rat in a room full of snakes when [PM] did it. I was like, okay, and I didn't know what to think or what was going to be next." Id.
In addition, the AJ considered the nature of the reprisal and the fact that it occurred one time. Moreover, the AJ found that the $500 award was consistent with previous Commission awards in similar per se reprisal cases.
Concurrent with the August 8, 2014, decision, the AJ issued an "Order Regarding Attorney's Fees and Costs." Specifically, the AJ instructed Complainant, who was represented by an attorney, to file an attorney's fees petition by August 27, 2014.
On September 15, 2014, the AJ issued an "Order Regarding Attorney's Fees and Entering Judgment." Specifically, the AJ did not award Complainant any attorney's fees or costs because she did not file an attorney's fees petition.
CONTENTIONS ON APPEAL
Complainant did not submit a brief or statement in support of her appeal.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015).
ANALYSIS AND FINDINGS
On appeal to the Commission, the burden is squarely on the party challenging the AJ's decision to demonstrate that the AJ's factual determinations are not supported by substantial evidence. See id. at Ch. 9, � VI.C. In this case, this means that Complainant has the burden of pointing out where and why the AJ's findings are not supported by substantial evidence. Cf. id. (pointing out that "[t]he appeals statements of the parties, both supporting and opposing the [AJ's] decision, are vital in focusing the inquiry on appeal so that it can be determined whether the [AJ's] factual determinations are supported by substantial evidence"). Here, Complainant did not submit a brief or statement in support of her appeal.
After a careful review of the record, we find that the AJ's findings of fact are supported by substantial evidence in the record and the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. As explained above, the AJ found that the Agency did not subject Complainant to harassment on the bases of race, sex, disability, or reprisal in connection with several incidents from February to June 2012, awarded Complainant $500 in non-pecuniary compensatory damages for per se reprisal in connection with one incident in June 2012, and did not award Complainant any attorney's fees or costs. We discern no basis to disturb the AJ's decision regarding liability, damages, or attorney's fees.
CONCLUSION
Based on a thorough review of the record, the Commission AFFIRMS the Agency's final action and REMANDS this matter for further processing in accordance with this Decision and the Order below.
ORDER
The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued:
1. The Agency shall pay Complainant $500 in non-pecuniary compensatory damages.
2. The Agency shall provide eight (8) hours of EEO training to PM regarding her responsibilities under EEO laws, particularly Title VII and reprisal.
3. The Agency shall consider taking appropriate disciplinary action against PM. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If PM has left the Agency's employ, the Agency shall furnish documentation of her departure date.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation that the corrective action has been implemented.
POSTING ORDER (G1016)
The Agency is ordered to post at its Salisbury Post Office in North Carolina copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
_3/2/17_________________
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.
2 Complainant filed the appeal following her receipt of a September 15, 2014, "Order Regarding Attorney's Fees and Entering Judgment" issued by an Equal Employment Opportunity Commission Administrative Judge (AJ). When the Agency did not issue a final order within 40 days of receipt of the AJ's order, the AJ's order became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i). Although the appeal was premature at the time of the filing, we find that it is currently ripe for review.
3 A T-6 position was a FT City Carrier position.
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