0120111501
08-28-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120111501
Hearing Nos. 430-2009-00316X, 430-2010-00112X
Agency Nos. 4K-270-0164-08, 4K-270-0089-09
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 2, 2010, 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 which found that Complainant did not demonstrate that she was subjected to retaliation, discrimination, and/or harassment.
ISSUE PRESENTED
The issue presented is whether Complainant was subjected to discrimination, reprisal, harassment and/or sexual harassment by management officials.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked a limited duty rehabilitation assignment as a Distribution Clerk at the Agency's Hilburn Station in Raleigh, North Carolina. On December 3, 2008, and July 9, 2009, Complainant filed formal complaints alleging that the Agency discriminated against her on the bases of sex (female), disability (Left hand, Back, and Perceived), and reprisal for prior protected EEO activity.
Complaint No. 4K-270-0164-08:
Complainant alleged she was subjected to discrimination on the bases of sex (female), disability (Left Hand, Back and Perceived), and retaliation (prior EEO activity) from July 30, 2008, and was subjected to harassment and sexual harassment including: (1) on August 7, 2008, management abolished her job; (2) on unspecified dates, management denied her refresher training; (3) on an unspecified date, management forced her to accept a Limited Duty assignment; (4) on September 26, 2008, she was sent home for not accepting a Limited Duty offer; (5) on unspecified dates, her training record was falsified; (6) on an unspecified date, she was listed as being AWOL which was changed to LWOP; (7) on February 16, 2009, her vacation and incidental leave was denied; (8) on March 2 - 6, 2009, her sick leave was denied; (9) on March 19, 2009, management attempted to influence her position towards him and she was issued a Letter of Warning; (10) on March 27, 2009, she was forced to sign a time disallowance form; and (11) on April 6, 2009, she was issued a Notice of Seven (7) Calendar Day Suspension for "Unsatisfactory Performance/Failure to Follow Instructions."
Complainant also alleged that she was subjected to three incidents of sexual harassment by her second-line supervisor (S2). First, she claimed that on August 4, 2008, she was called into S2's office, where he asked her what her goals were with the agency. She responded that she was fine where she was. S2 thereafter told her about various trainings that were available and indicated to Complainant that he did not have any work available for her to do. He suggested that she should think about working at Wal-Mart. He then told her that her schedule would need to be changed by two to three hours and when she responded that would make her have to drive at night S2 told Complainant to have her husband drive her to work. Complainant responded that she was not married and asked S2 if she was the only clerk that he spoke to in his office in this manner, to which he responded no. She excused herself to go to lunch, at which point S2 asked her to take him out to dinner, stating that she could afford it because she had more money than he did.
On August 21, 2008, Complainant shouted to a coworker that she was cancelling lunch because she was going to go out to dinner. S2 then asked if she could take him out to dinner and mentioned something about money. Complainant sarcastically asked S2, "what have you done for me lately," and he responded that he was keeping her employed. Finally, on September 16, 2008, S2 asked Complainant why she was not smiling and indicated that she did not smile enough. In addition to her claim of sexual harassment, Complainant has set forth other actions by S2 that she considered to be harassing. She asserted that S2 has hollered at her, used profanity, and threatened discipline against her when she has failed to sign documents he proffered to her.
Complaint No. 4K-270-0089-09:
Complainant contends that based on retaliation (prior EEO activity) she was subjected to discrimination when: (12) on May 28, 2009, she was not reimbursed for mileage; (13) on June 25, 2009, she was issued a Notice of Fourteen (14) Day Suspension for "Unsatisfactory Performance;" (14) on July 13, 2009, she was subjected to a hostile work environment when she was assaulted by her supervisor; (15) from July 14, 2009 to the present, she has been denied a full week of pay; (16) from July 14, 2009 to the present, she has been denied sick leave; and (17) on October 5, 2009, she was made aware that management refused to process her OWCP claim.
Complainant maintained that she was being retaliated against because she had named the managers involved in this matter in a prior EEO complaint. She maintains that they wanted to make her quit.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant withdrew her request for a hearing after the Agency submitted a motion for summary judgment. Therefore, a FAD was issued. The FAD found that Complainant's evidence did not demonstrate that she was subjected to discrimination, retaliation, sexual harassment and/or a hostile work environment. The FAD found that management articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons given were pretext for discrimination. The FAD also found that the incidents cited by Complainant were not severe or pervasive enough to establish a hostile work environment. Complainant also did not demonstrate that she was subjected to sexual harassment even when considering Complainant's allegations that her supervisor asked her to take him out to dinner twice and told her that she did not smile enough.
Specifically, the FAD found that with respect to claim no. 1, where Complainant asserted that she was told that her job was abolished, effective August 16, 2008, the Agency explained that management initially received notice that Complainant's job would be abolished but it was put on hold and therefore no changes were made. With respect to claim no. 2, the denial of refresher training, management maintained that it granted Complainant's request but she choose not to attend the training. Regarding claim nos. 3, 4, and 6, Complainant was asked to accept a Limited Duty assignment that was based on her medical restriction on file. She was told that if she did not accept the assignment she would have to be sent home as there was no other work available. Complainant refused to sign the offer and left the office without indicating the type of leave that she wanted to use. After a few days of Complainant not coming in to work, Complainant was placed in an AWOL status.
With respect to claim no. 5, management maintained that Complainant's training record was not falsified. With respect to claim nos. 6 and 7, Management explained that Complainant's leave was denied because the leave that she requested began in the middle of the week. The Agency's contract provided that vacation periods had to begin at the beginning of the week unless management, the union, and the employee all agreed otherwise. Complainant had not requested permission from S2 or anyone else. Regarding claim no. 8, Complainant's sick leave was denied because her sick leave request did not state that she was incapacitated or was unable to work during the period of absence. Management maintained that her medical documentation was not adequate and once she provided additional information, she was paid for the disputed period.
Regarding claim nos. 9, 10, and 11, management indicated that Complainant's supervisor issued a Letter of Warning to Complainant for failure to be regular in attendance. It was discovered however, that the discipline was procedurally defective and was rescinded 2 - 3 days after it was issued. On April 6, 2009, Complainant was issued a Notice of Seven (7) Calendar Days Suspension for repeated failure to follow instructions and continued poor work performance. Management proffered that the suspension was warranted based on Complainant's prior disciplinary record. All management officials denied that Complainant's sex, disability, or protected activity were factors in the decisions that were made.
Complaint No. 4K-270-0089-09
Regarding claim no. 12, reimbursement for mileage, management explained that Complainant was not reimbursed because the "statement of responsibility" was not signed by Complainant. It was explained to Complainant on several occasions that in order for her to be reimbursed for mileage, she would have to sign the proper forms and they would be submitted to the Finance Office so that could be reimbursed. Nevertheless, Complainant did not turn in the form. With respect to claim no. 13, when Complainant was issued a 14-day Suspension for Unsatisfactory Performance, management explained that upon review of the time and attendance folders, it was noted that Complainant had not filled out the reason why she was incapacitated for the dates she had called in sick for March 2, 3, 4, and 6, 2009. Her first-line supervisor (S1), instructed Complainant to complete the missing information. She asked if this was going to lead to discipline and if so, she needed to see a shop steward. Complainant refused to look at the form without a shop steward present.
On April 27, 2009, Complainant was instructed to report to her work assignment and within minutes of receiving this order she was observed coming from the copier on the other side of the building and upon seeing S2, she handed him a note. S-2 told Complainant to not leave her work assignment except to make the appropriate clock rings, answer the door or phone, use the restroom, take her lunch or break, or move to her next assignment. However, Complainant was later observed on a cell phone in an office that she did not have permission to access. Later that same day, S1 informed S2 that he had received a call from the Postmaster's office that Complainant may have a scheduled Employee Assistance Program appointment but when S2 called Complainant into his office to ask her about it, she refused to speak to him or acknowledge his questions in any way. In response to Complainant's actions she was issued a 14-day suspension for unsatisfactory performance and failure to follow instructions. There was a delay in issuing the disciplinary letter because the Labor Relations Specialist was away from the office.
S2 indicated that he had many conversations with S1 about Complainant as she was a difficult employee in regards to her work attitude, work performance, quality of work, and lack of a sense of urgency. S2 maintained that Complainant's work performance was poor; she had no sense of urgency, was not a team player, and she did not get along readily with many of the other clerks through her own actions and work habits. S2 maintained that Complainant appeared to come to work to try to accomplish as little as possible in her workday and when she did come to work, she attempted to find the longest way possible to accomplish her tasks which created anxiety and frustration for her coworkers who were trying to complete their assignments as quickly as possible and, at times, finding that they had to help her with her assignments.
Further, with respect to claim no. 14, a supervisor assaulting Complainant, management explained that on July 13, 2009, the supervisor in question startled Complainant when he quickly approached her in her work area and he held up a sealed envelope she had given to him on July 11, 2009 asking her what it was. Complainant responded that it was the same two CA-17 forms that she had given him on Saturday and advised him that the contents were written on the envelope. The supervisor threw the envelope into the tray of mail that Complainant was working on. Complainant informed him that the tray of mail was going out for dispatch and that she was not going to remove the envelope because she had given it to him. The supervisor removed the envelope, opened it, and read the forms and when he was finished, Complainant alleged that he hit her with his hand on her shoulder on the outside of where it connects to her arm. Complainant stated she believed the papers were still in his hand because she saw them flying in the air. Complainant turned to face him and her first reaction was to use profanity because she could not believe he had hit her. She immediately reported the incident to S1. The supervisor maintained that he did not hit Complainant but only placed the letter on her shoulder. Nevertheless, the matter was investigated and it was found that there were no witnesses to this incident. It was noted however that it was wrong for the supervisor to have put the letter on Complainant's shoulder.
With regard to claim nos. 15 and 16, where Complainant alleged that from July 14, 2009 to present, she has been denied a full week of pay and denied sick leave, Complainant asserted that since July 14, 2009, she has requested assistance from management officials to provide her with information as to what she needed to do to complete the necessary paper work to allow her to receive full pay. Complainant maintained that she had called numerous people for help including the Manager, S2, and the Resource Management Database for Sick Leave and they all alleged that they did not have the necessary paperwork. Finally, regarding claim no. 17, S2 explained that Complainant failed to submit any paperwork for review by management and she never sent him a letter requesting assistance. In fact, S2 maintained that he had no knowledge that Complainant had suffered an on-the-job injury and that if management was made aware of such an injury, proper action would have been taken to facilitate the claim.
Management indicated at great length that Complainant's problems stemmed from the fact that she would not conform her actions to the instructions of management and that she required much more supervision than any of the other employees in the office for precisely that reason. Complainant's supervisors strongly denied that Complainant's prior EEO activity was a factor in the decisions that they made.
Finally, with respect to Complainant's hostile work environment claims management asserted that the incidents Complainant complained of were work related matters dealing with instructions, production, rules, reminders, and leave. Management also maintained that the incidents were not severe and pervasive enough to establish a hostile work environment. Also, with regard to Complainant's allegation of sexual harassment, management denied that the incidents occurred but opined that even if the events occurred, they did not rise to the level of harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she was told by the previous Postmaster that her long term status on limited duty had been a burden to their system and as a result of this statement she believes she is seen as non-productive and disposable. She maintains that management retaliated against her because of her prior EEO activity. In reference to her job duties being changed for the needs of the service, Complainant maintained that every day that she reported to work there was always work for her. There was always nixie mail. In fact, everyone thought of it as her work and there was so much nixie mail for her to complete that she had to complain to management. Complainant explains that she was in need of training because she had not been in duty status from October 5, 2006, to March 2008 because three supervisors accused her of stealing a phone number from a rolodex at the supervisor's desk, while she was actually on vacation. When she arrived for the investigative interview and took out a tape recorder, she was charged with taping without permission, even though she never got the chance to record anything.
In response, the Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. The Agency also maintains that Complainant failed to show that she was subjected to a hostile work environment or sexual harassment. The Agency requests that the FAD be affirmed.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. We find that even assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons as was discussed above and Complainant failed to show that the articulated reasons were pretext for discrimination.
Further, we find that the incidents cited by Complainant including her supervisor touching her shoulder with the mail, being asked to sign limited duty offers, being asked to dinner twice, and being told to complete her work and come into work, were not severe or pervasive enough to establish a hostile work environment or sexual harassment. Finally, with respect to Complainant's allegations on appeal, we find that other than Complainant's conclusory statements she has not offered any evidence which suggests that discrimination and/or harassment occurred. Accordingly, we find the preponderance of the evidence of record does not establish that discrimination occurred.
The Agency's FAD finding no discrimination and/or harassment is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___8/28/15_______________
Date
2
0120111501
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111501