0120143100
08-12-2016
Geraldine G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Geraldine G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120143100
Agency No. 1K-302-0013-13
DECISION
On August 23, 2014, Complainant filed an appeal from the Agency's July 23, 2014, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Distribution Operations at the Agency's North Metro Processing and Distribution Center facility in Duluth, Georgia.
On June 28, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race (Black), sex (female), age (over 40), and prior EEO activity when:
1. on January 25, 2013, Complainant's manager (M1) did not return Complainant's submitted request forms for 32 hours of annual leave and 80 hours of prime vacation;
2. on January 29, 2013, M1 charged Complainant 32 hours of absent without leave (AWOL);
3. on January 30, 2013 and March 5, 2013, M1 ended Complainant's tour while she was still working;
4. on February 12, 2013, M1 subjected Complainant to an Investigative Interview;
5. on February 19, 2013, M1 threatened to remove Complainant from her position as QWL (Quality of Life) Coordinator of Management;
6. on February 26, 2013, M1 had maintenance remove the lock from the QWL office;
7. on March 5, 2013, M1 gave Complainant an employee's Form CA-2 to complete but the Form CA-2, Notice of Occupational Disease and Claim for Compensation, was originally submitted on February 27, 2013;
8. on March 7, 2013, M1 marked the mail in Complainant's processing area, alleging that her area did not timely and properly process the mail;
9. on March 8, 2013, M1 ordered Complainant over the intercom and on the workroom floor in a loud voice and in front of coworkers and subordinate employees to clear dispatch and asked her subordinate employee about Complainant's knowledge of the operation;
10. on March 12, 2013, M1 told the MDO that Complainant had stated "nothing" happens in QWL;
11. on March 19, 2013, M1 alleged that Complainant was missing for two hours and that he was paging her over the radio for two hours;
12. On November 21, 2013, Complainant sat and waited for three hours from 7:00 a.m. to 10:00 a.m. for a meeting with M1;
13. On November 21 and 22, 2013, Complainant was denied training;
14. On November 22, 2013, M1 removed Complainant from her bid assignment;
15. On November 22, 2013, Complainant learned that she was not detailed as EAS Supervisor at the Christmas Annex; and
16. On unspecified dates, M1 talked about Complainant to everyone but would not communicate with her or allow her to participate in staff meetings.2
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. Complainant did not respond.
On July 23, 2014, the Agency issued the instant final decision, finding no discrimination. The Agency found that Complainant did not establish a prima facie case of race, sex, age and reprisal discrimination. The Agency further found assuming, arguendo, Complainant established a prima facie case of race, sex, age and reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for the its actions which Complainant failed to show were a pretext.
The instant appeal followed. Neither Complainant nor the Agency raised further contentions on appeal.
Pertinent matters relating to the 16 claims at issue
Claim 1
Complainant alleged that she submitted her leave requests to M1's Administrative Assistant (AA) and requested that AA transfer the documents to M1. M1 had informed the supervisors at the facility, including Complainant, that they should hand their leave requests directly to him. AA attempted to give Complainant's requests to M1, and M1 commented that Complainant should have given the requests directly to him. M1 did not recall AA giving him the leave requests. AA did not return the requests to Complainant and M1 stated that the requests were not returned to Complainant because they "were left in a chair."
Complainant alleged that M1 returned leave requests to other supervisors.
Claim 2
Complainant alleged that on January 29, 2013, M1 charged her AWOL for the amount of annual leave that she had requested from January 29, 2013 through February 2, 2013. M1 stated that he charged Complainant with AWOL on January 29, 30, and 31, 2013 and February 1, 2013.
Claim 3
Regarding the alleged events on January 30, 2013 and March 5, 2013, M1 stated that he did not know Complainant was working, that she should have been "off the clock" and that she did not have permission to work.
M1 recorded Complainant as AWOL in the morning of January 30, 2013. That day, Complainant attended a meeting at the Agency's facility and remained to compile a report, about which she claimed she informed M1 when he called and told her loudly, "if you're on leave, you should not be in the building!" M1 stated that he corrected a timing error when he re-coded Complainant as AWOL that afternoon.
M1 claimed that on March 5, 2013, he ended Complainant's tour because she accidentally swiped "in from lunch," not "end of tour." At 1:53 a.m. on March 6, 2013, Complainant received an email from M1 in which he emphasized that she could not work overtime without his authorization.
Complainant noted that other supervisors have recorded overtime.
Claim 4
Complainant alleged that on January 30, 2013, M1 told Complainant that she would have an investigative interview when she returned from leave. The interview occurred on February 12, 2013. M1 noted that during the investigative interview, he questioned Complainant about her attendance.
Complainant claimed that she did not receive punishment because the interview was groundless. M1 had not informed her of the reason for the interview and she had not broken any rules.
Claim 5
M1 denied that he threatened to remove Complainant from her position as QWL Coordinator of Management.
Claim 6
M1 had the lock removed from the QWL office because he did not have access to the office and "employees would not unlock the door to allow access." Complainant stated that before maintenance removed the lock from the QWL office, M1 often stood outside the office, rattling the door handle. Complainant believed that M1's reason for removing the lock - that employees hid in the office - was pre-textual because he could not remember the name of the person he allegedly chased from the office and he could not have entered the office to allegedly chase someone from it.
After complaints about M1's action and discussions between employees and management, the facility restored the lock.
Claim 7
Complainant stated that M1 initially gave the Form CA-2 to another supervisor, a white male, but transferred the responsibility to Complainant as soon as she returned from leave. Complainant claimed that M1 pressured her, but not the other supervisor, to complete the form quickly. She further alleged that M1 understood that she had extra duties on Tuesdays and chose to give her the form to complete on a Tuesday. Since the Agency policy contained a 24 hour turnaround requirement for CA-2 forms after their initial submission, the system marked Complainant's name with a red flag when she returned the form.
M1 stated that he gave Complainant the form because it was not completed correctly or in a timely manner.
Claim 8
M1 marked the mail to see "if and when" it was processed. Complainant stated that the facility recorded delayed mail in the Daily Mail Condition Report and that the report did not list mail processed in her area. Complainant commented that M1 did not mark any other supervisor's mail and that he constantly scrutinized her.
M1 stated that he had also marked a named co-worker (CW1)'s mail.
Claim 9
Complainant alleged that M1 yelled over the intercom, "[Complainant] is GOING TO CLEAR THOSE DISPATCHES! [emphasis in its original]" Then, he walked across the floor, told her loudly to clear the dispatches and asked one of her employees, "Can [Complainant] do your job?"
Regarding the allegation, M1 denied ordering Complainant in a loud voice to clear dispatch in front of her co-workers.
Claim 10
M1 denied knowledge of the alleged conversation and noted that he is the Manager Distribution Operations.
Claim 11
M1 stated that on March 19, 2013, paged Complainant to locate her and give her instructions. AA recalled paging Complainant two to three times, pursuant to instructions from M1.
Complainant denied that the event occurred and that if M1 had paged her constantly, another employee would have informed her. Complainant claimed that she was not missing for two hours, that M1 did not understand how many duties she had, and how frequently she walked around the facility and that M1 did not mention the pages when she met him in his office.
Complainant noted that M1 treated CW1 and a second named co-worker (CW2) differently if they did not respond to a page. M1 favored CW1 and if CW2 gave M1 an excuse for why she did not respond, M1 did not react.
M1 stated that CW1 is "always available" when paged and that he had learned that CW2 tuned her radio to a different frequency due to her responsibilities.
Claim 12
M1 claimed that he had not known that Complainant would return on November 21, 2013 from her three month leave for stress. So Complainant had to wait for three hours for clearance to start work.
Complainant is not aware that M1 has had any other supervisors wait for meetings.
The record contains Complainant's doctor's note dated November 14, 2013, which Complainant claimed that she emailed to the general clerk on the same day, November 14, 2013, with a request that the general clerk deliver the note to M1 and M2. The general clerk informed Complainant that she had put the note in M1's mailbox but that she did not know how to contact M2.
Claim 13
M1 informed Complainant during the meeting on November 21, 2013, that Complainant would receive training on the Automated Induction Flat Sorter Machine and the Automated Induction Flat Sorter Machine. M1 explained that Complainant had never worked on the machine and that the training has been ongoing since November 21, 2013.
According to Complainant, M1 did not inform Complainant why she needed training and Complainant did not receive training. A supervisor informed Complainant that he was too busy to train her.
Complainant noted that no other supervisors have received such training.
Claim 14
M1 stated that during the relevant period, Complainant did not have a bid assignment. M1 further stated that he reassigned Complainant from her position as the Platform Supervisor/Mail Transport Equipment Coordinator to a position as a Flat Sorter Sequencing Supervisor (FSS) after Complainant returned from her leave for stress. M1 stated that supervisors do not have bid assignments and he listed three other supervisors who have changed areas of responsibility.
According to Complainant, she had worked as the Platform Supervisor/Mail Transport Equipment Coordinator, her "bid assignment," since 2009. Complainant noted that in her previous position, she worked from 7:00 a.m. to 4:00 p.m. and in her new position, she works from 9:00 a.m. to 7:00 p.m. She indicated that M1 works from 7:00 a.m. to 4:00 pm and that M1 assigned four different supervisors to fill the role of Platform Supervisor/Mail Transport Equipment Coordinator.
Claim 15
According to M2, Complainant was not detailed to the Christmas Annex because Complainant's doctor did not release Complainant to return to work until November 21, 2013, and Complainant had not notified M1 of her return date. Because M2 did not know Complainant's return date, she assigned another employee who had worked at the Christmas Annex to the position.
Complainant claimed that she had been detailed to the Christmas Annex since 2000 and that M1 provided her with no reason why she was not assigned to the facility.
Claim 16
Complainant alleged that another Supervisor told Complainant that M1 conveyed Complainant's instructions through other supervisors. CW2 described Complainant as working well with supervisors and managers but CW2 claimed that she had witnessed M1 completely ignore Complainant. CW2 also witnessed M1 speak in a "harsh demeaning condescending tone" to Complainant over the radio.
M1 denied that he did not communicate with Complainant.
Complainant could not attend daily staff meetings at 9:00 a.m. because she started work at 10:00 a.m. M1 noted that Complainant could attend the weekly staff meetings at 10:00 a.m. each Thursday, that he informed Complainant about pertinent information from the meetings and that the new plant manager had requested the early daily meetings.
Complainant was the only supervisor who could not attend the 9:00 a.m. meetings and Complainant denied that M1 informed her about the meetings. CW2 commented that when CW2 inquired whether Complainant should be present at the 9:00 a.m. meetings, M1 told CW2 to mind her own business and said, "this is my meeting."
Throughout her affidavit, Complainant claimed that M1 continually acted toward her and spoke to her in a manner intended to display his authority and establish his control over her within the facility.
The Postmaster (PM) indicated that other employees had expressed similar concerns about M1. PM received complaints when M1 removed the lock from the QWL office and management subsequently met with M1 about the tone in which he spoke to employees. Union representatives also complained of M1's tone when speaking to union officials. Agency management again spoke with M1 about his tone and about acting in a professional manner toward all employees.
PM was also aware that M1 had "issues with" Complainant, her leave and her unavailability during the tour.
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
The Agency identified six allegations that involved adverse employment actions that compromised discrete claims of disparate treatment: claims 1 - 3, and claims 13 - 15.
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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We conclude that the Agency properly held that Complainant was not subjected to discrimination on the basis of these claims. The evidence in the record does not establish that the Agency's explanations are pretexts for discrimination. .
First, regarding claims 1, 2 and 3, Complainant has not shown by a preponderance of the evidence that discriminatory animus rather than her failure to follow M1's directions regarding leave motivated M1's actions. In regard to claim 2, the record does not reflect that the Agency acted with discriminatory animus in recording Complainant AWOL for days she did not work.
Complainant also has not carried the burden of establishing that discriminatory animus rather than administrative concerns and Complainant's three month leave led to the alleged events in November 2013. See St. Mary's Honor Ctr., 509 U.S. 502, 507. Regarding claim 13, M1 noted that Complainant has received training and Complainant acknowledged that the supervisor's workload, not a discriminatory motive, allegedly prevented her from receiving training on November 22, 2013.
As to claim 14, although Complainant expressed suspicions of discrimination by noting that her schedule now overlaps less with M1's schedule, she has not shown by a preponderance of the evidence that M1 more likely acted from discriminatory animus rather than in response to Complainant's absence. Finally, with regard to claim 15, while the record suggests that Complainant sent correspondence to M1 regarding her return date, the record does not establish by a preponderance of the evidence that M2's explanation that she did not detail Complainant to the Christmas Annex because she did not know when Complainant would return from leave was pretextual.
Harassment
We further find that the Agency properly held that M1 did not subject Complainant to harassment based on her membership in a protected class. Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). To establish a prima facie case of hostile environment harassment, Complainant must show the existence of four elements: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11.
While Complainant has cited various incidents where M1 took actions that she found to be adverse to her, we find that Complainant failed to show that these incidents were the result of unlawful discrimination. Complainant has simply stated, for instance, that she believed she had a "target on [her] back" and that M1 wanted to prove he was in charge. While the record reflects that M1 had a contentious relationship with Complainant, as well as with other employees, the Commission notes that Title VII is not a civility code. Oncale v. Sundowner Offshore Servs., Inc., 423 U.S. 75, 80-81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the alleged harassment consists of a number of everyday management decisions and Complainant has failed to show that any of the alleged incidents were based on discriminatory or retaliatory animus.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
August 12, 2016
______________
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 Claims 12 - 16 were later amended to the instant formal complaint.
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