0120171017
06-05-2018
Cornell 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
Cornell S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171017
Hearing No. 461201600072X
Agency No. 4G700003116
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 16, 2016 Final Agency Decision ("FAD") concerning an equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Manager Post Office Operations ("MPOO"), EAS-25, at its Louisiana Customer Service District Office, in Shreveport, Louisiana.
On January 27, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Asian), national origin (Vietnamese), disability (High Blood Pressure, Anxiety, Insomnia, and PTSD) and association with an individual with a disability (caretaker of his terminally ill father) when:
1. On December 9, 2015, he was placed on Emergency Leave, subsequently his leave had not been processed properly,
2. On December 11, 2015, he was threatened with discipline, and
3. On November 5, 2015, his request for a hardship lateral transfer to MPOO, EAS-25, in Fort Worth, Texas, was declined, and
4. In December 2015, Complainant was denied an interview and subsequently was not competitively selected for the Fort Worth MPOO, EAS-25, position.2
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. � 1614.110(b).
After reviewing the record, we have identified the following facts:
Complainant had worked as an MPOO, EAS-25 for 6 years with an exemplary record, when his father, who resided in Fort Worth, Texas, became terminally ill and required his care. Complainant contacted the Area Human Resources Manager (Indian, East Asian, disability status unspecified) ("HR") on September 24, 2015 and requested a noncompetitive transfer to an MPOO, EAS-25, position in Fort Worth Texas that had recently been posted. HR replied the same day, directing Complainant to contact the the Fort Worth District Manager (African American, disability status unspecified), who would be the Selecting Official ("SO"), and to also apply competitively online. Complainant submitted his applications on October 1, 2015. SO declined his transfer request, as she had decided to select from competitive applicants only.
On November 5, 2015, Complainant met with his supervisor ("S1"), the Louisiana District Manager (American, white, disability status unspecified), disclosed his father's condition, and asked S1 if he could arrange a hardship transfer to the Fort Worth MPOO, EAS-25 opening. According to Complainant, S1 told him that he was "not qualified" and "could not have" the EAS-25 position. Complainant also alleged that S1 "pressured" him to accept a hardship transfer to a Level 22 position in Fort Worth, which he stated would not impact Complainant's salary. Complainant declined as it would be a downgrade from his Level 25 position. Then, on November 18, 2015, HR notified that Complainant that he had been competitively selected as one of the "best qualified" candidates to interview for the Fort Worth MPOO, EAS-25 position.
On December 7, 2015, the day he was scheduled to interview for the Fort Worth MPOO position, Complainant was hospitalized for symptoms related to his disabilities. Complainant notified SO, and they agreed they would reschedule once he recovered. Also on December 7, 2015, a congressional staffer called S1 and informed him that their office received 53 phone calls from constituents whose mail had been delayed or not delivered. S1 determined the delay originated from a facility Complainant supervised.
On December 9, 2015, Complainant returned to work on and S1 asked Complainant about his role in "disruption of day-to-day Postal operations, delay of mail delivery." Complainant revealed that he knew about the delivery issues since around December 5, 2015, but taken no steps to correct or prevent the delays. S1 informed Complainant that he would be on Emergency Placement pending an investigation. Complainant had to relinquish all Agency-issued property, including his cell phone, and he was barred from communicating with Agency employees or entering Agency property. Complainant felt humiliated as he was escorted from the facility in view of his coworkers and subordinates. Later, S1 rescinded the Emergency Placement, and replaced it with "Administrative Leave," and Complainant continued to get paid.
Without his Agency-issued cell phone containing SO's contact information, and because of the restrictions imposed by the Emergency Placement, Complainant said he could not reschedule the interview for the position of Fort Worth MPOO, EAS-25. Complainant did not hear back from SO, and learned later from a coworker that the position was awarded to another candidate (African American, disability status unspecified) with a lower grade level and less experience.
On December 11, 2015, Complainant received a letter from S1 notifying him that they were scheduled to meet on December 15, 2015 about the delayed mail incident. Complainant considered the letter to be a "threat" of disciplinary action. Due to disability-related health issues, Complainant was unable to attend the meeting. S1 denied making any threats, but explains that "an Investigative Interview was scheduled to determine what, if any administrative actions may be warranted." Ultimately no action was taken against Complainant.
The Agency's FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.
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").
Disparate Treatment
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Claim 1: Emergency Leave and Improper Processing
The Agency contends that the Emergency Placement, including confiscating Complainant's Agency-issued property and escorting him from the building, was necessary because Complainant was the subject of an internal Agency investigation. We find separating the subject of an investigation from a means to influence that investigation (i.e. ability to contact other employees in person or via Agency-issued cell phone) is a sufficient legitimate nondiscriminatory reason for the Agency's actions. Complainant does not dispute that matter to be investigated, disruption of operations and delay of mail delivery, occurred at a facility under his supervision, nor does he dispute his failure to act upon becoming aware of the issue. Also, Complainant's pay was not impacted, and S1 never enforced the Emergency Placement, which he subsequently rescinded and changed to Administrative Leave. The record supports that placing an employee on paid Administrative Leave during an investigation is consistent with Agency protocol.
On appeal, Complainant has not shown how these explanations were pretext for discrimination. Among other things, he has not offered comparator evidence, as there is no indication that another manager reporting to S1 had been contacted by their congressional representative about numerous constituent complaints, calling into question the Agency's operational competence. Complainant's alternate argument, that discriminatory motive can be inferred because he was the only Vietnamese manager, and S1 routinely mocked his accent and spoke to him in a slow deliberate manner, as if Complainant did not understand English, is insufficient to overcome the Agency's legitimate nondiscriminatory reasons. Even if proven true, we find it more likely than not that the emergency placement was S1's reaction to a being contacted by a congressional office reporting 53 complaints raised over a three-day period about mail delays and operational disruption in a facility that fell within his authority.
Complainant further alleged that the Agency improperly processed his leave, namely by failing to convert the Administrative Leave to Sick Leave, and grant his FMLA requests. Complainant has not offered evidence to rebut the Agency's legitimate nondiscriminatory reason, that on those dates Complainant already exhausted his FMLA leave for the year. The record also indicates that Complainant's Administrative Leave had been converted to Sick Leave, and that Complainant's requests for FMLA in 2016 were promptly granted.
Claim 2: Threat of Disciplinary Action
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides that an agency shall dismiss a complaint for failure to state a claim where the complainant alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. However, when a complaint is filed on a proposed action and the agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991).
The alleged threat of discipline in Claim 2 essentially describes a proposed personnel action. It is undisputed that the Agency did not proceed with any related disciplinary or other personnel action. Therefore, the Agency properly dismissed Complainant's allegation of disparate treatment in Claim 2 for failure to state a claim. As harassment complaints do not require evidence of a concrete employment action to be actionable, the Agency properly included Claim 2 as part of Complainant's hostile work environment allegation, discussed further below.
Claims 3 and 4: Lateral Transfer and Interview Rescheduling
It is well established that the Agency, as the employer has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered into the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048.
Here, the Agency's legitimate nondiscriminatory reason for denying Complainant's lateral transfer request was that the Fort Worth MPOO, EAS-25 vacancy was already posted as a competitive position open to qualified applicants. Moreover, at least one other employee besides Complainant requested a lateral noncompetitive transfer to the position, so the selecting official ("SO") directed them to apply competitively "like everybody else." The record contains supporting affidavit testimony by SO and a copy of an email from another employee seeking a noncompetitive transfer to the Fort Worth MPOO, EAS-25 vacancy, which SO also denied.
The Agency's explanation for Claim 4 was also an operational decision, as the vacancy needed to be filled. In affidavit testimony, SO explained that Complainant "was not considered because he was not available for the interview, nor did he make arrangements to be interviewed." SO decided to move forward with a candidate who been interviewed. We find no evidence that the decision was pretext for discrimination. Neither SO, who was based in Fort Worth, Texas nor HR, who was based in Dallas, Texas, had met Complainant and they were unaware of his race, national origin, and disability status.
Complainant argues that S1 denied him the Fort Worth MPOO, EAS-25 position during their November 5, 2015 meeting, and used the Emergency Placement to prevent him from interviewing for the position. S1 testified in an affidavit for the record that he had no say in how the vacancy would be filled, as it was "not [his] vacancy." Both SO and HR support that S1 was not involved with the selection process. There is no evidence, other than Complainant's bald assertions that S1 influenced SO and HR's decision to hire a candidate for the Fort Worth MPOO, EAS-25 position, without waiting to interview him first.
Hostile Work Environment
To prove his harassment claim, Complainant must establish that he 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. EEOC Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant must also prove that the alleged harassing conduct was based on his membership in a protected class, here, race, national origin, disability or disability association. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).
Where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment is actionable only if the alleged actions were sufficiently severe or pervasive to alter the conditions of the complainant's employment. However, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a hostile work environment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995).
Complainant's Claim 1 allegation concerning his Emergency Placement, as well as the alleged discriminatory acts in Claim 3 and 4, will not be included in our harassment analysis because, for the reasons discussed above, we found no evidence of discriminatory motive. However, we have considered Complainant's Claim 1 allegation that S1 improperly processed his leave.
On appeal, Complainant argues that the Agency never fully addressed S1's failure to process his FMLA leave requests on the dates referenced by Claim 1, and ultimately another Agency official processed his FMLA. While no term, condition, or privilege of employment was impacted, we have previously found instances where a supervisor improperly processing an FMLA claim may constitute harassment. See Ramsey v. United States Postal Serv., EEOC Appeal No. 07A10080 (Jul. 18, 2003). However, in this case, there is no indication that S1 intentionally delayed Complainant's FMLA Leave requests for the dates of November 6 through 9, 2015 and December 7 and 8, 2015. Complainant does not dispute that he was paid throughout the relevant time frame and that his attendance record was corrected to reflect FMLA leave. Complainant's other harassment allegation, Claim 2, concerns a single incident where Complainant alleges that S1 threatened him with discipline.
Considering these allegations together, while both were likely stressful and frustrating, they represent isolated incidents, did not harm Complainant, and appear unlikely to reoccur. Therefore, Complainant has not established that these incidents were sufficiently severe or pervasive to rise to the level of unlawful harassment.
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 decision.
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
June 5, 2018
__________________
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 Claim 4 has been included for clarity. The parties' submissions, documents in the record and the FAD, do not articulate the alleged denial of an interview as a claim, but include it in their analysis of Claim 3.
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