Corie E.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 16, 20180120171558 (E.E.O.C. Oct. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Corie E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171558 Agency No. 4G-752-0205-16 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 8, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Sales and Services Associate at the Agency’s University Station in Dallas, Texas. On August 14, 2016, Complainant filed the instant formal complaint. Complainant claimed that she was subjected to discriminatory harassment/hostile work environment based on sex (female) and age (over 40) when: 1. on unspecified dates from January 2016 through March 2016, she was called into the office six times; 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. 0120171558 2 2. on an unspecified date in February 2016, the supervisor threw her food away; 3. on unspecified dates, her co-workers informed her that the supervisor said she could not stand Complainant; 4. on unspecified dates, the supervisor talked about her work performance to customers; 5. on unspecified dates, she was mandated to work overtime; 6. on March 25, 2016, she was charged Leave Without Pay (LWOP) instead of the requested annual leave; 7. on April 6, 2016 and other unspecified dates, she was issued a Letter of Warning; and 8. on unspecified dates, management changed her clock rings. After the investigation of the formal complaint, Complainant was provided with a copy of the report of the investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence.2 Complainant did not respond. On March 8, 2017, the Agency issued the instant final decision finding no discrimination. The Agency found that Complainant did not establish a prima facie case of sex and reprisal discrimination. The Agency further found that assuming arguendo Complainant established a prima facie case of sex and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext. The instant appeal followed. ANALYSIS AND FINDINGS Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). 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 her protected bases -- in this case, sex and age. 2 The record reflects that even though Complainant did not submit her affidavit until the investigation of her complaint was completed, the Agency included it in its analysis of the instant final decision. 0120171558 3 Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, for the reasons stated below, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her sex and/or age. Regarding allegation 1, Complainant asserted that on unspecified dates from January 2016 through March 2016, she was called into the office six times. The Supervisor, Customer Service (female, year of birth 1961), stated that she called Complainant in her office because she wanted her to be aware of “the changes that [were] upcoming in the unit.” The supervisor further stated that she did not call Complainant in her office “to discipline her. I was explaining to her the changes taking place at unit.” Regarding allegation 2, Complainant alleged on an unspecified date in February 2016, the supervisor threw her food away. The supervisor acknowledged throwing out food from the refrigerator. The supervisor explained there was a sign posted on the refrigerator before she threw out the food. The supervisor stated, “the food was old and threw all mildew and food away.” Furthermore, the supervisor stated that after she explained to Complainant why she threw out of the food, Complainant “said that was alright. I offered to buy her some food if she was going to eat that.” Regarding allegation 3, Complainant alleged on unspecified dates, her co-workers informed her that the supervisor said she could not stand Complainant. The supervisor denied telling Complainant’s co-workers that she could not stand Complainant. There was no other testimony or evidence to corroborate Complainant’s claim. Regarding allegation 4, Complainant asserted on unspecified dates, the supervisor talked about her work performance to customers. The supervisor denied talking about Complainant’s performance with customers. Specifically, the supervisor stated there was one occasion when a customer informed her that Complainant “was a good worker and I said ‘ok.’” There was no other evidence to corroborate Complainant’s vague claim. Regarding allegation 5, Complainant alleged on unspecified dates, she was mandated to work overtime. The supervisor stated that on May 31, 2016, she asked Complainant to work overtime “because we were short staffed and the line was full of customers.” Regarding allegation 6, Complainant asserted on March 25, 2016, she was charged LWOP instead of the requested annual leave. The Manager, Customer Services (female, year of birth 1963) stated that while she does not recall the incident, it was possible that Complainant did not have any leave left. The supervisor stated that she does not recall the March 25, 2016 incident. We note that although the two Agency officials referenced above either do not recall the circumstances of the subject claim, or speculate that an LWOP was issued because Complainant had no leave left, Complainant does not provide any response on appeal to the Agency statements. 0120171558 4 Regarding allegation 7, Complainant alleged that on April 6, 2016 and other unspecified dates, she was issued a Letter of Warning.3 The supervisor stated that she issued Complainant a Letter of Warning dated April 4, 2016, for Improper Conduct/Failure to Follow Instructions. Therein, the supervisor stated that on March 31, 2016, Complainant was instructed to work two hours of overtime but she said “no” in the presence of another supervisor. The supervisor stated that she repeated the instructions to Complainant again to make sure she understood the instructions. The supervisor stated the second time Complainant was given the instructions, she replied “negative” and ended her tour. Following the April 1, 2016 investigation, the supervisor determined that Complainant’s conduct was improper because as a postal employee, she was expected to follow her instructions. The supervisor placed Complainant on notice that she was “aware of what you were asked to do and you were able to do it, but you still did not accomplish the task. This is unacceptable. I hope that this Letter of Warning will serve to impress upon you the seriousness of your actions and that future corrective action will not be necessary.” The supervisor stated that Complainant was in violation of Sections 665.13 “Discharge of Duties” and 665.15 “Obedience to Orders” of the Employee and Labor Relations Manual. Moreover, the supervisor stated that Complainant’s sex and age were not factors in her decision to issue her the April 4, 2016 Letter of Warning. Regarding allegation 8, Complainant asserted that on unspecified dates, management changed her clock rings. The supervisor stated that she does not know anything about the change of Complainant’ clock rings because she did not mention anything to her. Complainant provided no proof, other than her bare allegation, to show her clock rings were changed. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 3 The record does not include any other Letter of Warning besides the April 6, 2016 Letter of Warning. 0120171558 5 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. 0120171558 6 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 16, 2018 Date Copy with citationCopy as parenthetical citation