0120161535
05-04-2018
Grayce H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Grayce H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120161535
Agency No. 4E800008915
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's January 12, 2016 final decision concerning an equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of 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., and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Full Time City Letter Carrier (Q-01) at the Boulder-Valmont Station in Boulder, Colorado.
On August 8, 2015, Complainant filed a formal complaint alleging she had been subjected to discrimination and harassment on the bases of race (white) and sex (female) when:
1. On February 6, 2015 and March 10, 2015, she was questioned in the office regarding her attendance while others were only told to improve and received a copy of their attendance history (PS Form 3972) and a copy of the attendance section of the Employee & Labor Manual ("ELM"),
2. On February 25, 2015, she was issued a 7-day suspension for Failure to Follow Instructions, and was denied union representation,
3. On February 25, 2015, her request for 6.33 hours of sick leave was recorded as Absent Without Official Leave ("AWOL"),
4. On April 10, 2015, she was issued a 14-day suspension related to scanning and leaving a parcel in her vehicle, and,
5. On April 23, 2015, her supervisor told her to stop talking to another letter carrier, as Complainant was on break but the letter carrier was not.2
Complainant alleged discrimination and harassment on the bases of sex (female), age (52), and reprisal (prior protected activity, including this complaint) when:
6. On May 30, 2015 and June 2, 2015, she was charged 16 hours AWOL, and,
7. On June 30, 2015, her supervisor would not release her witnesses to attend a court proceeding, which was not related to postal business.
On September 1, 2015, the Agency accepted Claims 4 and 6 for investigation, and dismissed the remaining claims on procedural grounds. Specifically, Claims 1, 2, and 3 were found untimely, pursuant to 29 C.F.R. �1614.107(a)(2). Claim 1, was alternately dismissed for failure to state a claim pursuant to 29 C.F.R. 1614.107(a)(1), as were claims 5 and 7.
Complainant was a direct report to two Supervisors, Customer Service (EAS-17), her first level supervisor ("S1") (male white/Hispanic, 33, prior EEO activity not specified) and her tour supervisor ("S2") (male, white, 38, prior EEO activity not specified). Both S1 and S2 reported to the Manager, Customer Service (EAS-22) ("M1") (female, white, 54, prior EEO activity not specified), who was Complainant's second level supervisor. S1, S2 and M1 were all aware that Complainant was white, female, and had engaged in prior EEO activity, but did not know Complainant's age. According to these management officials, the alleged discriminatory actions were taken in response to misconduct by Complainant.
After its investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation ("ROI") and notice of her right to request either a Final Agency Decision ("FAD") or a hearing before an EEOC Administrative Judge. Complainant timely requested a FAD. In its FAD, the Agency affirmed its procedural dismissal of Claims 1, 2, 3, 5, and 7, and determined that Complainant failed to establish discrimination as alleged for Claims 4 and 6.
The instant appeal followed. On appeal, Complainant argues that Management holds her to a higher level of scrutiny than the other Letter Carriers. Complainant also alleges she was required to use annual leave instead of sick leave even though she applied for and was approved for leave under the Family and Medical Leave Act ("FMLA"). She further alleges that she was disciplined and singled out as retaliation, and developed medical conditions because of stress and pressure caused by Management.
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) ("EEO-MD 110") (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").
Claims 1, 2, and 3 - Untimely
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Complainant's first contact with an EEO Counselor about this complaint was on April 29, 2015, over 45 days after the alleged discriminatory actions in Claims 1, 2 and 3.3 Complainant does not dispute that she was aware of the alleged actions when they occurred, and that she suspected them to be discriminatory at the time.4 Given her prior experience filing EEO complaints (discussed further below) Complainant is deemed aware of EEO time limits. See Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. United States Postal Serv., EEOC Request No. 05980473 (Jun. 24, 1999). She has not offered any explanation for the delayed EEO contact in the record or on appeal.
Claims 1, 2 and 3 were properly dismissed for untimely contact with an EEO Counselor.
Claims 1, 5 and 7 - Failure to State a Claim
The federal regulation set forth under 29 C.F.R. � 1614.107(a)(1) provides that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In allegations of harassment the Commission has held that the claim may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
The Agency determined that neither Claim 1 nor Claim 5 described actions that caused a harm or loss with respect to a term, condition, or privilege of Complainant's employment. Further, both claims describe a "common workplace occurrence," as they involve instructions provided by a supervisor. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Additionally, Claim 1 and Claim 5 describe isolated incidents. We have repeatedly found that a few isolated incidents of alleged harassment, such as the allegations in Claims 1 and 5, are usually insufficient to state a viable claim of harassment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996); Banks v. Health and Human Servs., EEOC Request No. 0594081 (Feb. 16, 1995).
Regarding Claim 7, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 25, 1993). Complainant alleges, without providing further details or evidence, that M1 would not release coworkers to testify as witnesses in her civil court action, but allowed employees who were requested by Complainant's opposition to leave work to attend the proceeding. The proper forum for complainant to have challenged M1's actions related to her court proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred in civil court. See Henry v. United States Postal Serv., EEOC Appeal No. Appeal No. 0199972956 (Dec. 11, 1998)
Claims 1, 5 and 7 were properly dismissed for failure to state a claim.
Claims 4 and 6
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 based on 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). In the instant case, the Agency's legitimate nondiscriminatory reason for its actions in Claims 4 and 6 was that it was responding to Complainant's misconduct in accordance with Agency policy.
In Claim 4, S1 issued a 14-day suspension to Complainant, with M1 as the concurring official, because Complainant violated Agency policy about package tracking and delivery.5 Specifically, S1 received a complaint from a customer who received a note in her mailbox from Complainant asking if it would be ok for her to leave a package with a neighbor. S1 confirmed that snow on the customer's property had been sufficiently cleared so that Complainant should have delivered the package. As Complainant failed to scan the package when she returned, it appeared as "service failure." S1, S2 and M1 all searched for the package and found it on the passenger side of Complainant's vehicle. S1 conducted an investigative interview with Complainant, and S1 relied on the Employee and Labor Relations Manual ("ELM") Sections 665.13 "Discharge of Duties" and 665.15 "Obedience to Orders" as well as Handbook M-41 City Carriers Deliveries and Responsibilities, Sections 322.31, 322.31 C, 752, and 755.
Likewise, in Claim 6, S2, with M1's concurrence recorded Complainant as AWOL for 16 hours when she did not arrive to work, and failed to follow protocol by calling the Agency and notifying it that she would be absent. Again, the Agency provides the relevant provisions of the ELM and Handbook, demonstrating that recording an employee that fails to report to work or notify the Agency of his or her absence as AWOL is consistent with Agency policy.
On appeal, Complainant argues that the Agency's actions pertaining to her leave violated her rights under the FMLA. The FMLA falls under the regulatory ambit of the Department of Labor, not the Commission. As with Complainant's allegations in Claim 7, related to court proceedings, is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the FMLA process.
As for Complainant's allegation that Claims 4 and 6 are part of an overall claim of harassment, such a determination is precluded by Complainant's failure to overcome the Agency's legitimate nondiscriminatory reasons for its actions. Given the evidence that the Agency acted in accordance with its policies, and the lack of contradictory evidence from Complainant, we do not find Management's actions "either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive." 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 (June 18, 1999).
Previously Decided EEO Complaint
Complainant's appellate brief states that she is appealing both the instant complaint, and our previously issued decision in EEOC No. 0120150904 (Agency No. 4E800014414). We issued our decision for EEOC No. 0120150904 on June 4, 2015, remanding one claim back to the Agency for further processing, and providing instructions on how to request reconsideration, including a 30-day deadline to file. Our records indicate Complainant did not request reconsideration for EEOC No. 0120150904. Therefore, EEOC No. 0120150904 is our final decision on the matter, and we will not address those issues further.6
CONCLUSION
Having reviewed the record in its entirety, including consideration of all submissions on appeal (pertaining to this complaint), we find the preponderance of the evidence of record does not establish that discrimination occurred. Accordingly, 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
May 4, 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 Complainant's pre-complaint documents, Notice of Right to File, and Formal Complaint all frame Claim 5 as "On April 23, 2015, she was told to get back to her case while still on break," however, Complainant does not dispute the Agency's framing of the issue on appeal.
3 The Agency also correctly found the alleged denial of union representation during a disciplinary meeting in Claim 2 (violating Complainant's "Weingarten Rights"), failed to state a claim under 29 C.F.R. � 1614.107(a)(1). The proper forum to raise a claim regarding a violation of Weingarten Rights is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002).
4 Typically, a timeliness analysis of a claim concerning a 7-Day Suspension (Claim 2) is calculated based on the date the suspension became effective. 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). However, in this case, we found the February 25, 2015 date of issuance of the notice of suspension triggered the 45-day limitation period because the Agency did not proceed with the suspension as it was reduced to a Letter of Warning after Complainant filed a grievance on the matter.
5 Complainant filed a grievance and Management agreed to reduce the suspension from 14 days to 7 days, with retention of one year starting April 4, 2015.
6 The Agency fully complied with our order in EEOC No. 0120150904 remanding one claim for processing. See EEOC Compliance No. 0620150644 (Mar. 4, 2016). Complainant was provided with a FAD with appeal rights to the Commission, but Complainant did not appeal the FAD.
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