0120093569
05-20-2011
Eva Hogard, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Eva Hogard,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093569
Hearing No. 471-2008-00097X
Agency No. 1J-486-0001-08
DECISION
On August 22, 2009, Complainant filed an appeal from the Agency's July 23, 2009, notice of final action 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's notice of final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Flint Processing and Distribution Center in Flint, Michigan. Report of Investigation (ROI), Exhibit 1. The record reveals previously Complainant had been a union steward and had represented several employees in their EEO complaints. ROI, Affidavit A, pages 9 - 10. When she was a union steward, Complainant represented Person X concerning an allegation that Person Y, a supervisor at the time, harassed Person X and caused her to go into premature labor. ROI, Affidavit A, page 11. Person Y was terminated from the Flint Plant in May 2007. ROI, Affidavit B, page 13. Pursuant to a settlement agreement Person Y was reinstated as a PTF mail handler. Id.
On August 23, 2007, Complainant told Person X that Person Y was returning to the Agency and Complainant informed Person X about a conversation she previously had with Union Steward 1 who said that between Person Z, an employee who had been previously fired, and Person Y, Person Y would be more likely to come back to make trouble if he did not get his job back.1 ROI, Affidavit A, page 11.
On August 27, 2007, Person X learned Person Y was in the building and became upset. Person X told Person A, Associate Supervisory Program (ASP) Candidate, that Complainant had told her that Union Steward 1 has known Person Y for a long time and if he does not get his job back, he was going to come up in here shooting. ROI, Affidavit A, page 59. Person X was so upset she went home on August 27, 2007, and did not return to work until September 29, 2007, based on the advice of her doctor. ROI, Affidavit B, page 13.
The Agency investigated this incident. On October 24, 2007, Person C, Manager, Distribution Operations (MDO) for Tour 3, issued Complainant a Notice of Removal, effective November 26, 2007, for Conduct Unbecoming/Creating a Hostile Work Environment. ROI, Affidavit A, pages 49 - 51. The Notice stated that Complainant violated ELM 665.16 Behavior and Personal Habits and the Southeast Michigan Performance Cluster's Zero Tolerance Policy by making statements during a conversation with another employee that caused an employee to be fearful for her life. Id. at 50-51. The Plant Manager concurred with the removal. ROI, Affidavit A, page 51.2
Complainant filed a grievance on her removal. Due to additional information presented for the first time at the Step 2 meeting, consisting of Person X recanting her original statement, the MDO for Tour 1, contacted the Manager of Labor Relations, and requested that Labor Relations further investigate the allegations. ROI, Affidavit D, page 6. The Union President granted a two-week extension on the matter. ROI, Affidavit A, page 33. During a November 23, 2007 meeting, Person C met with Complainant, Union Steward 1, and the Supervisor, Distribution Operations (SDO) and Person C gave Complainant a direct order to report to work on Tuesday, November 27, 2007. ROI, Affidavit A, page 21. Complainant reported to work on November 27, 2007. ROI, Affidavit A, page 22. Complainant did not report to work on November 28, 2007, and did not attempt to call in or notify her supervisor that she was not going to report to work on November 28, 2007. ROI, Affidavit A, page 23. Complainant was charged Absent Without Leave (AWOL). On December 4, 2007, Complainant was given a pre-disciplinary interview for being AWOL on November 28, 2007. ROI, Affidavit A, pages 33, 69. Complainant was issued a 14-day suspension dated December 13, 2007, for Failure to Follow Instructions/AWOL for not reporting to work on November 28, 2007. ROI, Affidavit A, pages 69 - 71. This suspension was received on December 20, 2007, and was later settled in April 2008. Hearing Transcript, pages 365 - 366.
Complainant filed an EEO complaint dated January 21, 2008, alleging that the Agency discriminated against her and subjected her to harassment in reprisal for prior protected EEO activity when:
1. On October 12, 2007, Complainant was given a pre-disciplinary interview and threatened with removal;
2. On October 24, 2007, Complainant was issued a Letter of Removal;
3. On November 2, 2007, Complainant was screamed at;
4. On December 4, 2007, Complainant was given a pre-disciplinary interview; and
5. On December 20, 2007, Complainant was issued a 14-day suspension.
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 timely requested a hearing. Subsequently, on March 11, 2009, Complainant requested to amend her Complainant to include an additional allegation of reprisal when: on March 10, 2009, Person A got on the public address system in the Flint Processing and Distribution Center and said, "[Co-worker 2] and Evil Hogard to DBCS number nine."
The AJ permitted Complainant to amend her complaint to include the allegation that she was subjected to discrimination and harassment in reprisal for prior protected EEO activity when:
6. On March 10, 2009, Complainant was allegedly paged by Supervisor A on the workroom floor by being called "Evil Hogard" rather than "Eva Hogard."
The AJ held a hearing on March 16 - 17, 2009, and issued a decision on July 14, 2009. In his decision the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the AJ noted that the evidence shows that the October 12, 2007 pre-disciplinary interview and threatened removal, resulted from Person X's repeated statements that Complainant told her that Person Y would come in shooting if he did not get his job back. The AJ noted that Person X repeated this statement to Person A, a flat sorting clerk (Person B), Union Steward 2, and Person C. The AJ noted that even Union Steward 1 agreed that Person X submitted verbal and written statements that Complainant made this statement. The AJ noted that Person C credibly believed Person X who made the statement verbally several times and even provided a written statement about the matter. The AJ noted that when Person C interviewed Complainant and Union Steward 1, they refused to provide written statements about the matter. The AJ also noted that Complainant attempted to get Person X to change her statement. The AJ found it reasonable for the Agency to believe Person B and Person X's reports to them.
The AJ found Complainant failed to show that the Agency's legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. The AJ determined Complainant failed to establish that she was retaliated against when she was given a pre-disciplinary interview and threatened with removal.
With regard to the October 24, 2007 letter of removal, the AJ noted the Agency stated that it conducted the investigation and issued the Notice of Removal based on the Complainant's shooting comments as repeated several times by Person X. The AJ noted that the Agency felt that this action was warranted because Complainant's comments caused Person X to have a panic attack and be off work for a long time. The AJ determined Complainant could not establish that the reasons given for issuing the Notice of Removal were a pretext for retaliation.
The AJ noted that Complainant also claimed that she was subjected to retaliation and a hostile work environment when Person C allegedly screamed at her during a November 2, 2007 Step 1 grievance meeting. The AJ stated that Complainant claimed that Person C screamed at her when she accused her of pressuring Person X to sign a statement. The AJ noted that Person C denied that she screamed at Complainant but rather said it was Complainant who was yelling and walked out of the meeting. The AJ found the meeting became contentious with both sides strongly disagreeing with the other. The AJ found no evidence that anything said by management at the November 2, 2007 meeting was said in retaliation for protected EEO activity.
With regard to the December 4, 2007 pre-disciplinary interview and the December 20, 2007 Fourteen Day Suspension, the AJ noted that on November 23, 2007, Person C requested a two-week extension of the removal so the Plant Manager could conduct an additional investigation following the receipt of Person X's second statement date November 7, 2007. The AJ noted that Union Steward 1 and Complainant refused the extension. The AJ found that later Person C brought them both in again indicating that the Plant Manager got the two-week extension from the Union President. The AJ found that Person C ordered Complainant to return to work on November 27, 2007 until further notice. The AJ noted that the SDO confirmed that Person C told Complainant that she had to return until further notice. The AJ stated that Complainant reported for work on November 27, 2007 but did not report on November 28, 2007, and did not inform anyone that she was not going to report. The AJ found Complainant's refusal to report to work on November 28, 2007, was a legitimate, nondiscriminatory reason for holding the pre-disciplinary interview and issuing the 14-day suspension.
The AJ acknowledged that Complainant attempted to show that this was not Person C's true reason for the December 4, 2007 pre-disciplinary interview and the resulting suspension by claiming that she was not told to return to work until further notice. However, the AJ did not credit Complainant's or Union Steward 1's testimony on this point. Moreover, the AJ noted that Complainant failed to provide any mitigating reasons for not following instructions to return to work until further notice. Thus, the AJ determined Complainant did not establish that she was retaliated against when the December 4, 2007 pre-disciplinary interview was conducted or the resulting 14-day suspension was issued.
With regard to the March 2009 paging allegation, the AJ noted that Complainant claimed that the paging incident occurred only a few days prior to the subject hearing on her complaint. The AJ noted that Person A denied that she paged the Complainant over the PA system as "Evil". The AJ noted that the SDO credibly testified that he was standing next to Person A and she did not call the Complainant "Evil Hogard" when paging her. The AJ found the record showed that the PA system was very poor and that often people on the workroom floor could not hear who was being paged. The AJ noted that Co-Worker 1 testified that she heard the statement made and the AJ stated she had no reason not to credit Co-Worker 1 who the AJ stated does not seem to have any bias or reason to lie. Thus, in her decision the AJ said she credited that the statement was not made, but that the poor PA system may have sounded like it was said. The AJ concluded that even if it was heard to be "Evil" not "Eva," this would be only be one statement, and would not be enough to show that Complainant was subjected to a hostile work environment.
The Agency subsequently issued a notice of final action fully implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant states that the March 10, 2009 "Evil Hogard" incident occurred only seven days before Complainant was to testify in the subject case. 3 Moreover, Complainant notes that she was scheduled to appear opposite Person A in two mediations on the same day as the paging incident. Complainant argues that the AJ did not recognize that Co-Worker 2 also testified that he heard the "Evil Hogard" comment. Complainant states that Co-Worker 1 was the only unbiased witness who supported the conclusion that "Evil Hogard" was heard. Complainant argues that since Person A and the SDO were in the office, they could not hear what came out of the PA system. Complainant also states that there was no testimony at the time the statement was made that there was any problem with the PA system. Complainant also notes that neither of these two witnesses were qualified as experts in PA systems or the science of sound reinforcement such that they could give an expert opinion. Finally, Complainant argues that the paging incident was reasonably likely to deter her and others from protected EEO activity.
In response to Complainant's appeal, the Agency notes that Complainant's appeal concerns only the paging incident which occurred on March 10, 2009. The Agency notes that the AJ credited the testimony of Person A and the SDO over Complainant's testimony. The Agency notes that Person A was not a decision-maker in any of the matters related to the other issues in the complaint. The Agency noted that the AJ did not credit Co-Worker 2, who during his testimony on a separate matter, initially lied about his own discipline for conduct unbecoming based on allegations of sexual harassment. The Agency stated that even though Co-Worker 2 later acknowledged this to be true, his credibility was damaged. The Agency argues that the AJ's finding that the testimony of Person A and the SDO were more credible with respect to the paging incident is consistent with the entire record.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the present case, the Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to issues (1) and (2), the record supports the AJ's finding that the Agency investigated Complainant's conduct and disciplined Complainant because Person X made repeated statements to management that Complainant had made comments to her referring to a co-worker "coming in here shooting" which resulted in Person X having a panic attack and missing work for a little over a month. With regard to issue (3), Complainant did not show that anything said by management at the November 2, 2007 Step 1 grievance meeting was said in retaliation for EEO activity. Similarly, with regard to issues (4) and (5), substantial evidence supports the AJ's finding that Complainant's refusal to report to work on November 28, 2007, after being informed that she was to report to work on November 27, 2007 until further notice, was a legitimate, nondiscriminatory reason for holding the pre-disciplinary interview and issuing the 14-day suspension. Complainant failed to show that the Agency's actions with regard to these issues were a pretext for discrimination.
With regard to the paging incident, we find the AJ correctly determined that this incident by itself was insufficient to show that Complainant was subjected to a hostile work environment. However, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Because the statement at issue was made six days prior to Complainant's scheduled EEO hearing and on the same day Complainant was scheduled to attend two EEO mediations, we find the statement reasonably likely to deter the charging party or others from engaging in protected activity. Thus, we analyze this incident on the merits.
Upon review, we find substantial evidence supports the AJ's finding that the PA system was poor and that often people on the workroom floor cannot hear who is being paged. Hearing Transcript, at pages 255 - 256; 298 - 299. The record also supports the AJ's finding that Person A did not page Complainant as "Evil Hogard;" however, the poor PA system might have sounded like Complainant was referred to as "Evil Hogard." In the present case, Complainant presented no evidence that the Agency's actions on March 10, 2009, were motivated by discriminatory animus based on Complainant's prior protected EEO activity.
CONCLUSION
Accordingly, the Agency's notice of final action finding no discrimination is 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
5/20/11
__________________
Date
1 Person X's versions of this conversation differ.
2 The record reveals that the Notice of Removal was ultimately rescinded just prior to arbitration on the removal.. Hearing Transcript, page 77.
3 On appeal, Complainant states that the hearing occurred on March 17, 2009, which she states was seven days after the paging incident. However, a review of the record reveals that the hearing occurred on March 16 - 17, 2009.
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01-2009-3569
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093569