0120160924
03-13-2018
Chere S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chere S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160924
Agency No. 1G731002814
DECISION
On December 29, 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 November 24, 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.
ISSUE PRESENTED
Whether Complainant was unlawfully harassed by a coworker based on her race and sex, and later subjected to retaliatory disciplinary action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Oklahoma Processing and Distribution Center facility in Oklahoma City, Oklahoma. On October 20, 2014, Complainant filed a formal EEO complaint alleging that, from July 18, 2014 on, she was verbally harassed by a coworker based on her race (Caucasian) and sex (female), and management did not properly address it. Complainant also alleged that she was subjected to unlawful retaliation for engaging in protected activity when, on September 22, 2014, she had to meet with her manager without a union representative for an investigative interview, resulting in being issued a notice of a seven-day suspension.
The Agency accepted the complaint and conducted an investigation. 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 EEOC Administrative Judge (AJ). Complainant initially requested a hearing, but later withdrew the request. Therefore, the Agency issued a final decision, based on the evidence developed during the investigation, concluding no discrimination or unlawful retaliation was established.
The instant appeal followed. Complainant submitted no contentions on appeal.
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").
Race/Sex Harassment by Coworker
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
The evidence developed during the investigation shows that on July 18, 2014, she and a male co-worker ("C-1") (African-American male) met for the first time while being assigned to work together, and immediately engaged in an argument concerning the correct labels to use. Complainant advised C-1 that she was now the "regular employee" and that she would make the decisions. C-1 told her that she was not the "boss." Complainant said that when she attempted to walk away, C-1 followed her, continuing the argument, including shaking his finger in her face. She said she had to tell him several times to get away from her before he did. When Complainant complained to her supervisors (African American male and African American female), she said they "down-played" C-1's actions. Complainant claimed she was so shaken and panicked by the encounter that she had to go home on sick leave.
Even accepting Complainant's version of the July 18, 2014 incident as true, there is simply no evidence that Complainant's race or sex played any role in C-1's alleged conduct. The record indicates that this was a dispute between two coworkers over workplace procedures and, even if it escalated to a more serious verbal altercation, there is simply no connection established between the incident and Complainant's race or sex. As such, she has failed to establish one of the essential elements of her claim of discriminatory harassment.
Disparate Treatment - Retaliatory Disciplinary Action
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant alleges that due to her EEO complaint about C-1's harassment, she was interviewed and disciplined on September 22, 2014.
The record shows that on September 22, 2014, a Supervisor of Distribution Operations (male, race not identified in the record) called Complainant in for an investigative interview and issued her a seven-day suspension. He averred he did so because she had missed a regular scheduled work day on September 19, 2014, and did not call in to report her absence. Instead, she submitted a leave slip upon her return to work. He stated he had no knowledge of Complainant's prior EEO activity or her allegations of harassment by C-1.
Complainant admitted she was absent on the date in question and had not called in. She said that she told the supervisor during the interview that she had gone to the doctor and received medication which caused her to "pass out" rendering her unable to notify management of her absence. The supervisor did not accept this as a valid justification, and Complainant was charged with being absent without official leave (AWOL) for the day and issued the suspension notice.
The record shows that Complainant filed a union grievance over the suspension, and it was later reduced to an official discussion. The suspension notice was expunged from her record.
A review of the record shows that Complainant did not prove, by a preponderance of the evidence, that retaliatory animus played any role in management's decision to conduct the investigative interview and issue the notice of suspension.
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 FAD.
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 (T0610)
This decision affirms the Agency's final decision in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency. or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 signature
Carlton M. Hadden, Director
Office of Federal Operations
___3/13/18_______________
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.
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