0120170356
08-03-2018
Glenna O.,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
Glenna O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170356
Hearing No. 460-2016-00102X
Agency No. 4G-770-0273-15
DECISION
On November 8, 2016, 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 October 6, 2016, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected her to discriminatory harassment on the bases of race (African American), color (light skin), sex (female) and age (58), as the result of 4 incidents that took place from July 21, 2015 to November 7, 2015.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Fairbanks Station - Houston Post Office facility in Houston, Texas. On December 9, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (Light Skin), and age (58) when:
1. On July 21, 2015, her supervisor stated that she looked like a baboon and continued to call her a baboon and laugh at her in front of her coworkers;
2. On or about September 1, 2015, she was ordered off the clock;
3. On October 23, 2015, management spoke to her unprofessionally while she was on her route and proceeded to take her overtime work from her and reassign it to another carrier; and,
4. On November 7, 2015, she was yelled at in front of her coworkers.
The investigative record reveals that in July 2015, Complainant and her supervisor (S1) got into a verbal altercation when S1 interceded in a confrontation between Complainant and another employee. When S1 told Complainant to return to her route, among a number of comments, Complainant referred to S1 as "ugly," whereupon S1, who is also an African American woman, two years older than Complainant, stated that if that was the case Complainant must look like a baboon. This incident took place in the workroom. Specifically, when S1 approached Complainant about her behavior, Complainant's initial comments to S1 were "[y]ou ain't nobody. I don't want you to bring me nothing, you can't do nothing for me with your ugly self." S1's response was [i]f I am so ugly I guess you must look like a baboon." Thereafter, both parties were called in to meet with management and admonished for their behavior. Regarding the September 2015 incident, S1 ordered Complainant off the clock after the two had another confrontation where there was a possibility that it might escalate.
The customer service manager, Complainant's second level supervisor, S2, testified that he was evaluating the workload, and on a regular basis shifts work to avoid unnecessarily assigning overtime. Hence, once S2 spoke to Complainant, he realized that it was more efficient to re-assign her route to another carrier. Concerning the November 7, 2015, interaction, S1 testified that she inquired about Complainant's absence from the work area when she noticed that her route had not been pulled down. With respect to this incident, S2 testified that he never heard any of his supervisors yell or scream at any time and that Complainant raises an "issue every time she is given instructions."
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 initially requested a hearing but the AJ subsequently dismissed the hearing request on the grounds that Complainant failed to follow direction and failed to prosecute her case. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The Agency reiterated previously submitted arguments that Complainant failed to show that the Agency's legitimate, nondiscriminatory actions were a pretext for unlawful discrimination.
STANDARD OF REVIEW
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").
ANALYSIS AND FINDINGS
The instant appeal can be examined under both disparate treatment and hostile work environment analyses. In order to prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. 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).
To establish a claim of hostile work environment harassment, Complainant must show that: (1) she belongs to 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been "sufficiently severe and pervasive to alter the conditions of Complainant's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In the instant matter, we assume without so finding that Complainant established a prima facie case of disparate treatment discrimination based on race, color (light skin), sex (female) and age (58). Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions with respect to claims 2 and 3. Specifically, Complainant was ordered off the clock to avoid conflict, her work was reassigned when it was determined that there was no need for overtime, and she was admonished when she was absent for a time from her work station. Complainant failed to rebut the Agency's legitimate, nondiscriminatory reasons for its actions in any of the claims.
After a review of the record, the Commission finds that all of the incidents, taken together, do not constitute discriminatory harassment. While Complainant and her supervisor did not have an ideal working relationship, we conclude that Complainant simply did not establish that she was subjected to conduct that was sufficiently severe or pervasive enough to create a hostile work environment. In so finding, the Commission notes that EEO laws are not a civility code. Rather, they forbid "only behavior so objectively offensive as to alter the conditions of the victim's employment." Qncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).2 Moreover, Complainant made no showing, nor presented argument on appeal, of discriminatory animus on the part of the Agency with respect to any of her protected bases.
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 final 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
___8/3/18_______________
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 With respect to the initial conflict between Complainant and S1 in July 2015, we also note that both S1 and Complainant were reproached by management concerning their behavior.
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