Desire M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 20, 20180120171796 (E.E.O.C. Dec. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Desire M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120171796 Hearing Nos. 480-2015-00663X, 480-2016-00319X Agency Nos. 4F-913-0054-15, 4F-913-0108-15 DECISION On April 21, 2017, 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 April 7, 2017, notice of final action concerning her equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s notice of final action finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant’s assigned position was a City Letter Carrier. During the relevant time, Complainant’s medical restrictions included lifting no more than 10 pounds and no carrying a satchel. As a result of these restrictions the Agency provided and Complainant accepted the accommodation of a limited duty assignment performing clerk work for eight-hour shifts, as needed. Person A was a Supervisor, Customer Services at the Van Nuys facility and was Complainant’s immediate supervisor during the relevant time. Person 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. 0120171796 2 B was a Manager, Customer Services at the Van Nuys facility. Person C was a Supervisor, Customer Services at the Van Nuys facility, who supervised Complainant occasionally when he worked the front window. Complainant filed a formal complaint dated April 22, 2015 (Agency Case No. 4F-913-0054-15) alleging that she was discriminated against and harassed based on her race, age, and disability when: 1. On June 19, 20, and 25, 2015, she was sent home early from work; and 2. On July 14, 2015, she received a Notice of Seven-Day Suspension dated July 10, 2015. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On September 2, 2015, Complainant filed an EEO complaint (Agency Case No. 4F-913-0108-15) alleging that the Agency discriminated against her in reprisal for her prior Merit Systems Protection Board (MSPB) activity and protected EEO activity when: 1. On Pay Periods 22 and 23 of 2014, management improperly input her time resulting in her having to repay an overpayment on December 10, 2014; 2. In February 2015, while working at the Balboa Postal Store she was shown two schedules that did not have her listed from February 28 through March 13, 2015; 3. On February 28, 2015, she received a text from her Supervisor on her day off which instructed her to report to her Manager when she arrived at work on Monday; 4. On March 2, 2015, during a meeting with her Manager, the Manager threatened to walk Complainant off of the workroom floor, and she was given a fact-finding regarding an incident that occurred on February 23, 2015; and 5. In March 2015, Complainant was charged Leave Without Pay (LWOP) rather than the sick leave she requested for her absence, resulting in her receiving no pay in Pay Periods 7 and 8 of 2015. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. While Complainant’s cases were pending a hearing, the parties filed several motions with the AJ. Specifically, the Agency filed two Motions on January 19 and 20, 2017, requesting summary judgment on Complainant’s complaints. Complainant also filed a motion for summary judgment on January 20, 2017. On February 7, 2017, the Agency filed its Opposition to Complainant’s Motion for Summary Judgment. Complainant also had filed a Motion to Compel Production of Documents on January 3, 2017. 0120171796 3 On February 13, 2017, the AJ issued an Order on Complainant’s Motion to Compel and Decision. Regarding Complainant’s Motion to Compel, the AJ noted Complainant failed to include in the Motion “verification that the requesting party attempted in good faith to resolve the issue without judicial intervention,” as required by the AJ’s Order Scheduling Initial Conference. Second, the AJ found the Motion must fail because Complainant failed to include “the full text of the response or answer at issue,” as required by the Order Scheduling Initial Conference. The AJ stated for both of these reasons, Complainant’s Motion to Compel must fail. Additionally, the AJ noted the Agency already satisfied its discovery obligations. The AJ recognized the only Request for Production identified by Complainant in her pleading was her request for “Agency Policies used to prepare and provide accommodations for Limited Duty employees when providing them with job offer, that meets their limitations for available and necessary work.” Complainant admitted that the Agency, in its Response, provided copies of EL- 307, and referred her to ELM-546. EL-307 and ELM-546 are “Agency Policies” that concern accommodations. Complainant relied on these “Agency Policies” in her Motion for Summary Judgment. These documents were responsive to Complainant’s request for “Agency Policies.” The AJ found Complainant did not show a basis to compel any further response. The AJ noted that rather than identify how the Agency’s response was inadequate as to “Agency Policies,” Complainant took issue with the fact that the response did not state “if other employees are making request and how are these requests being process[ed] and the structure of the job offer, including analysis on if they have been productive, and the duration of their time frame in their respective limited duty job,” and “if other employees have been offered training, and did that training lead to a more permanent job offer according to the EL-307.” The AJ noted Complainant did not request information concerning the results of other employee requests for accommodation. If Complainant were interested in that information, she should have requested that information in her Requests for Production. The AJ found Complainant did not present any reason why the opportunity she has already been afforded to explore these topics was inadequate. The AJ found Complainant’s Motion to Compel must fail. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing. The AJ determined the evidence in the record was insufficient for Complainant to prove that she was subjected to discriminatory treatment or discriminatory harassment, or denied accommodation, when she was sent home on three occasions and issued a Notice of Suspension that was reduced to a Letter of Warning. Regarding the disparate treatment claims, the AJ found Complainant failed to prove a prima facie case of discrimination based on race, age, and disability. The AJ found that Complainant might have been sent home a little early on three dates, but her position only guaranteed eight hours “as needed.” The AJ found that given the nature of Complainant’s limited duty assignment, being sent home a little early on three days is not sufficiently adverse to change the terms or conditions of her employment. Complainant was given a Notice of Suspension, but the Notice was reduced to a Letter of Warning. 0120171796 4 The AJ found that Complainant did not point to any concrete harm that resulted in the Letter of Warning, or how it had any meaningful effect on her life. The AJ concluded without such evidence, Complainant’s disparate treatment claim must fail. The AJ found even if Complainant could prove a prima facie case regarding her claims of disparate treatment, she still failed to point to evidence sufficient to prove pretext. First, she did not present evidence sufficient to call into doubt the Agency’s stated reasons for its action- namely, that she was sent home early on three occasions because there was no additional work available within her restrictions, and that the Agency issued the Notice of Suspension in response to what it viewed as Complainant’s failure to follow directions. Complainant did not point to specific evidence to show there was additional work available within her restrictions on June 19, 20, and 25. She did not sufficiently refute the Agency’s stated belief in her performance issues. Complainant also did not point to evidence to prove that her race, age, or disability were factors in the Agency’s actions. She did not point to comparatives who, in similar circumstances, were treated better than her. She does not point to other evidence sufficient to link her race, age, or disability to any Agency decision. Although not dispositive, the fact that other employees on limited duty were also sent home when no additional work was available, and the fact that other employees were issued discipline in response to related, perceived issues, suggests that something other than Complainant’s race, age, or disability motivated the Agency’s decision. Regarding harassment, the AJ determined Complainant did not show causation. Complainant did not point to evidence sufficient to link her early dismissal and Notice of Suspension to her protected bases. The fact that Complainant was sometimes the only Black employee in the room is likewise insufficient to prove that race motivated this conduct. Given that seniority governs much at the Agency, the allegation that management talked about her seniority status is too vague to implicate a motivation to discriminate against her on the basis of age. Finally, the reference to Complainant’s limited duty status2 in the Notice of Suspension is insufficient to link that action to her alleged disability. The only comparatives presented were not described with particularity sufficient to show that they were treated better under similar circumstances, including comparable work restrictions and a comparable relationship with a supervisor. Moreover, the AJ found Complainant had not proven a sufficiently hostile work environment. Three instances of being sent home early from her limited duty positon, and one instance of a Notice of Suspension that was reduced to a Letter of Warning are not sufficiently hostile for a reasonable person in Complainant’s position to consider them a change in the terms or conditions of her employment, or an environment of severe or pervasive hostility. Rather, the AJ found that the evidence in the record reveals an Agency attempting to govern its workload and address apparent performance issues through progressive discipline. 2 The AJ mentioned Complainant’s “light duty” status; however, the record reveals the Notice of Suspension referred to Complainant’s “limited duty” status. 0120171796 5 The AJ also found Complainant did not prove her denial of accommodation claim. The evidence showed that the Agency accommodated Complainant’s medical restrictions by providing her a position within those restrictions with near-fulltime hours, as needed. Complainant might have preferred more regularity in her schedule, might have preferred to be given make-work when the available work ran out, and might have preferred other modifications to her accommodation, but she is not entitled to her preferred accommodation, and she fails to point to evidence to prove the Agency’s accommodation was less than effective. Additionally, even if the “as needed” nature of the position was not sufficient, Complainant has not pointed to evidence that she was qualified for some other position that was vacant and available at the time. The record supports that there was no additional work available to Complainant, which she has not successfully refuted. Although not dispositive, the fact that other limited duty employees were sent home early supports that another position was not available. The AJ noted Complainant failed to point to evidence in the record sufficient to prove that she was subjected to retaliatory disparate treatment or retaliatory harassment when she was given an overpayment she had to repay, was shown two schedules without her name on them, received a text message from her Supervisor on her day off, was threatened that she would be walked off the workroom floor, was given a fact finding, was temporarily charged LWOP, was sent home early on three occasions, and was issued a Notice of Suspension that was reduced to a Letter of Warning. First, as to the overpayment, the AJ noted this was a discrete act that must be addressed within 45 days. Because the overpayment occurred in 2014, but Complainant did not make the initial EEO contact until June 2015, the claim is untimely. However, the AJ stated the allegation will be considered as background evidence in relation to the retaliatory harassment claim. Assuming Complainant can prove a prima facie case with regard to all the disparate treatment claims, she has not present evidence sufficient to prove pretext. Even assuming the management officials responsible for these decisions were aware of some prior EEO activity by Complainant, the evidence is insufficient to refute the Agency’s stated reasons for its actions, or to prove that such prior EEO activity motivated the Agency’s actions. The evidence supports that the Agency’s actions were the types of disciplinary actions that are common methods of addressing perceived employee performance issues (Notice of Suspension), and the types of administrative errors (overpayment, varying schedules), workplace logistics (text message on day off, early dismissal), and procedural necessities (LWOP) that are regular occurrences in the workplace. Complainant did not present any other evidence sufficient to call into doubt the Agency’s stated reasons for its various actions. Moreover, Complainant does not establish the link between some specific prior EEO activity and the Agency’s actions here, including citation to any probative comparative evidence, or any other evidence sufficient to prove a retaliatory motive. Regarding her retaliatory harassment claims, the AJ found Complainant did not present evidence sufficient to prove causation. Complainant has not linked her overpayment or her handful of confusing schedules to her prior EEO activity, as opposed to mere administrative errors. 0120171796 6 She has not shown how a text message on her day off, three instances of early dismissal, and the issuance of LWOP pending submission of appropriate paperwork, were motivated by her EEO actions, as opposed to the Agency’s desire to have her see her Manager at the start of her shift, its attempts to scale the hours given to the work that was available, and its application of neutral rules regarding leave approval. Complainant has not shown how the threat to walk her off the floor or to issue a Notice of Suspension – which was later reduced to a Letter of Warning - were responses to her EEO conduct, as opposed to a reaction to her perceived performance issues. Without such evidence, Complainant’s retaliatory harassment claim must fail. The Agency subsequently issued a notice of final action on April 7, 2017. The Agency’s notice of final action fully implemented. the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant appears to claim that she eliminated race and color as bases in her complaint while her case was pending a hearing. She also states that she amended her claim from race to hostile work environment, retaliation/reprisal. 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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 9, 1999) (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”). Upon review of the record, we find that the AJ properly found that the present complaint was suitable for summary judgment and that the AJ properly denied Complainant’s motions. We find that the record is adequately developed and there are no disputes of material fact. At the outset, we address Complainant’s contention that she withdrew race/color as bases for her complaint and that she stated she amended her case from race to a hostile work environment, retaliation. We note the record contains a February 2, 2015 statement from Complainant to the Commission in Agency Case No. 4F-913-0054-15 requesting to remove race/color as a basis and requesting to maintain the harassment and retaliation/reprisal basis for the complaint. The record does not contain a ruling on this request. The record reveals that the AJ did consider the claims in 4F-913-0054-15 as part of Complainant’s claim of retaliatory harassment. To the extent Complainant withdrew race/color as a basis of her complaint and it was still considered by the AJ, we find Complainant was not harmed by this action. 0120171796 7 Upon review, assuming Complainant established a prima facie case for all bases on her disparate treatment claims, we find she failed to show that the Agency’s legitimate, nondiscriminatory reason its actions was a pretext for discrimination. Even if we consider the repayment claim as timely raised, we find that Complainant has not shown that the Agency’s legitimate, nondiscriminatory reason (overpayment made in mistake) was a pretext for discrimination. Additionally, to the extent that some of the claims could be construed as claims that Complainant was denied a reasonable accommodation, we find Complainant failed to establish that she was denied a reasonable accommodation for her alleged disability. Moreover, we find Complainant failed to establish that she was subjected to harassment based on any of her protected bases. Accordingly, the Commission finds that Complainant did not prove that she was subjected to discrimination as alleged. CONCLUSION Accordingly, the Agency’s notice of final action finding no discrimination is AFFIRMED. 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. 0120171796 8 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 December 20, 2018 Date Copy with citationCopy as parenthetical citation