0120140200
02-26-2016
Hettie T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hettie T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120140200
Hearing Nos. 460-2009-00034X, 460-2010-00090X & 460-2011-00044X
Agency Nos. 6U-000-0010-08, 6U-000-0006-09 & 6U-000-0026-10
DECISION
On October 9, 2013, Complainant timely filed an appeal from the Agency's September 6, 2013, final order concerning her three consolidated 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to her complaints, Complainant worked as a Sales Specialist, EAS-23, in the Houston Sales Center in Houston, Texas.
On June 8, 2008, Complainant filed Complaint 1 (6U-000-0010-08), alleging that she was discriminated against based on her race (Hispanic), religion (Agnostic), sex (female) age (52), disability (perceived), and retaliation for prior EEO activity when:
1. She was told to leave the premises and placed on administrative leave with pay, from December 5, 2007 through January 28, 2008; and
2. On February 21, 2008, she was issued a Letter of Warning in Lieu of 14-Day Suspension dated January 17, 2008.
On May 9, 2009, Complainant filed Complaint 2 (6U-000-0006-09), alleging that she was discriminated against based on her race, national origin (Mexican-American), sex, age (53 & 54), disability, and reprisal for prior EEO activity in that from October 2008, she was subjected to a hostile work environment and ongoing harassment including but not limited to:
3. Regarding events starting in October 2008;
4. On March 25, 2009, she received a negative response from her manager concerning her E-Recourse (appeal) from her Fiscal Year 2008 rating; and
5. On May 19, 2009, she received five notices of non-selection for Level 25 Manager of Sales positions.
On June 7, 2010, Complainant filed Complaint 3 (6U-000-0026-10), alleging that she was discriminated against based on her race, age (54), disability and reprisal for prior EEO activity when:
6. On March 24, 2010, she became aware of an agreement to expunge discipline prior to the 2009 reorganization, but she was excluded.2
At the conclusion of three separate investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Following requests for hearings on Complaints 1, 2 and 3, the AJ consolidated these complaints and held a hearing on them. Thereafter, the AJ found no discrimination. The Agency issued a final order adopting the AJ's finding of no discrimination.
On issues 1 and 2, the AJ found that Complainant failed to establish a prima basis of discrimination on any basis. On issue 4, the AJ found that Complainant did not establish a prima facie case of discrimination on any basis except reprisal - she did not identify a similarly situated individual who was pending removal (for explosive outbursts toward her manager) who met with her manager to discuss her rating. On issue 5, the AJ found that Complainant did not make out a prima facie case of discrimination on any basis - she failed to demonstrate she met one of the qualifications of the position because she did not list management experience on her resume. On issue 6, the AJ found that Complainant failed to establish a prima facie case of discrimination on any basis because she did show an agreement existed, as alleged. On issue 3 and Complaints 1, 2, and 3, the AJ found that Complainant did not show she was subjected to a hostile work environment on any basis because the actions did rise to the level of a hostile work environment and she failed to show they were taken against her because of her protected bases.
On issues 1 and 2, the AJ referenced and recounted testimony from witnesses regarding explosive outbursts and disruptive behavior by Complainant. As background, Coworker 1, who was in sales, was instructed by management to move some "opportunities," to Complainant. Coworker 1 explained that each opportunity must have a primary owner who should be aware of them because they are in the system which sales people look at every day. Complainant contended that because she was not aware Coworker 1 moved opportunities to her, she missed certain dates resulting in problems with her first line supervisor (S1).
The AJ recounted Coworker 1's testimony that on December 3, 2007, she and S1 were at the copy machine and Complainant approached her upset and angry about sales opportunities that were moved to her, and she was afraid because of Complainant's anger. Coworker 1 testified that Complainant advanced on her with "explosive" anger that made her so frightened she trembled. Hearing Transcript (HT), 111 - 112. S1 wrote a statement corroborating Coworker 1's account, adding Complainant was screaming. Report of Investigation (ROI) for Complaint 1, Exhibit 7.
On December 4, 2007, Complainant attended the mandatory Houston and Louisiana Sales Team First Quarterly Meeting - a training meeting. According to Complainant's second line supervisor (S2), during her presentation Complainant repeatedly questioned her instructions and would leave the room before she could answer. Complaint 1 ROI, Affidavit B, at 7.
After the meeting, at the behest of S2, Complainant, S1 and S2 privately met at the meeting site. The AJ referenced and recounted S2's testimony that she opened the meeting by asking Complainant what was going on, and Complainant responded by repeatedly screaming in her face "mind your own business" and pointing her finger at her. S2 testified that she asked Complainant to calm down, that Complainant said "Now, how does this make you feel," and S2 did not initially know Complainant was reenacting a confrontation she had with Coworker 2 on October 29, 2007, which initially arose over a dispute about who should work on a sales account. S2 testified Complainant complained about the way management reacted to the confrontation and with a look in her eye pointed to the chair where Coworker 2 sat in the Quarterly Meeting and said they should not have allowed him to talk or given him an award there. S2 testified that Complainant said she wanted Coworker 2 disciplined in front of everyone, was screaming the whole time, was in her face, and would not calm down in response to her efforts to get her to do so. S2 testified that she felt threatened for herself and Coworker 1, who already expressed a concern for her safety. S1 wrote a statement corroborating S2's account, and added that at the private meeting Complainant had rage in her voice and eyes and at that point she (S1) began to shake and feel very uncomfortable. Complaint 1 ROI, Exh. 7.
S2 stated that she placed Complainant on administrative leave because she repeatedly asked Complainant to calm down, and warned her if she did not do so she would be asked to leave the building in the private meeting, but she would not calm down. Complaint 1 ROI, Affidavit B, at 29. In the subsequent Letter of Warning in Lieu of 14-Day Suspension, S2 charged Complainant with unacceptable conduct, and recounted the events on December 3, and the next day at the Quarterly Meeting and private meeting. But S2 stated she issued this discipline because of Complainant's conduct in the private meeting. Id. at 5.
On October 29, 2008, Complainant, Workplace Environmental Analyst 1 (role to address workplace personnel environment), and S2 met to give Complainant an opportunity to address her concerns. The AJ referenced and recited S2's description of Complainant's behavior at this meeting - Complainant saying S2 allegedly threw down a magazine in a public meeting (September 2007), and when S2 denied this, responding "liar, liar, you fucking liar," and swinging open the door and in loud and aggressive manner saying "just ask anyone." S2 testified that she was visibly shaken and Workplace Environmental Analyst 1 tried to calm Complainant down but she instead threw down a piece of paper to reenact the magazine incident, and was in a rage. The Workplace Environmental Analyst testimony corroborated S2's account, and she testified that Complainant would go from being calm to getting loud, it was obvious S2 was afraid, and Complainant continued to yell so the meeting ended. The AJ recounted S2's testimony that shortly after the meeting, Complainant told S2 "I hope your husband is happy. I hope your daughter is happy," and repeated this comment. The AJ recounted S2's testimony that she took this as a threat to her family, it made her very upset, and she went to her daughter's elementary school and told them that if someone tried to come and get her daughter, not to let her leave. In reaction to the October 29, 2008, event, Complainant was put off of work, and other actions occurred.
Regarding issue 4, the AJ characterized S2's explanation as there not being merit to Complainant's rating appeal and she could not appeal because she was pending removal. Also, as noted above, the AJ found Complainant did not identify a similarly situated individual who was pending removal (for explosive outbursts toward her manager) who met with her manager to discuss her rating. In response to Complainant's appeal, S2 wrote Complainant "Based on your performance for FY 2008, you were rated as a non-contributor. At this time, the Postal Service is proposing your removal for cause. Therefore no additional consideration will be given to your request for an appeal and/or review of your PFP rating for FY 2008." Complaint 2 ROI, Affidavit B, at 11. S2 stated that she felt uncomfortable having any further discussion with Complainant concerning her performance due to her behavior. Id., at 4.
On issue 5, the AJ recounted testimony from the Chairperson of the Review Committee for the EAS-25 sales manager position in Houston (2 slots), who was also a Review Committee member for the position in Rio Grande (2 slots - one in San Antonio, one in Austin) that Complainant was rated as not being minimally qualified because she had no management experience, and from what he recalled she had no employees directly reporting to her. The AJ also recounted the testimony of the selecting official for Louisiana (1 slot - New Orleans) that Complainant was not qualified because she had no demonstrated experience in management listed in her application.
Regarding issue 6, the AJ recited the testimony of the Vice President of Sales nationally - who assumed that role in January 2009, that she did not make an agreement to expunge all sales employees' discipline and that such an agreement would be beyond her authority and inappropriate. The AJ further recounted that the Vice President testified that the only agreement she made with the National Association of Postal Supervisors (NAPS) was to eliminate any performance improvement plans which were issued based on revenue after there were questions about the validity of the revenue numbers. Complainant, who was not a witness to the agreement, expressed the belief that in a February 2009 meeting between the above Vice President and President of NAPS they agreed that all prior discipline of Sales employees would be removed in exchange for NAPS not to attempting to obtain restitution for employees wronged by inaccurate measurement systems used in the compensation program. ROI for Complaint 3, Affidavit A, at 27. In response to a May 2012 inquiry from Complainant, the NAPS President wrote that there was no agreement to purge all prior discipline, but the Vice President said that because of prior problems in Sales she would make a fresh start by removing all letters of warnings. Hearing Exhibit 32. The Vice President denied agreeing to remove letters of warning. Hearing Transcript, at 283.
The AJ found that based on the testimony and evidence she outlined, she found that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding pretext, the AJ found that Complainant and S2 had a difficult working relationship, and she became upset with S2 on several occasions and also had conflicts with other employees, which seemed to center on Complainant's perception that the assignment of sales accounts was unfair. The AJ found that it was reasonable for S2 to interpret Complainant's actions, including her comment about S2's husband and child being happy, as threatening, and to take action. The AJ did not agree with Complainant's perception that the issues in this case were motivated by discriminatory animus, and found they were more likely motivated by her unfortunate interactions with both coworkers and S2.
In its final action, the Agency implemented the AJ's decision.
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. (Aug. 5, 2015).
To prevail on her disparate treatment claims, 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 he or 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment a 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 their 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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).
On appeal, Complainant disputes the AJ's assessment of the evidence. She argues that the AJ failed to cite and apply the correct standard for determining actionable retaliation.
For purposes of analysis, we will assume without finding that Complainant established a prima facie case of discrimination all bases, including reprisal, on all her claims.
The AJ's finding that the Agency was not motivated by discriminatory animus regarding any of Complainant's claims, and that Complainant failed to prove pretext is supported by substantial evidence. With regard to issue 6, the AJ's finding that there was no agreement which covered Complainant's Letter of Warning in Lieu of 14-Day Suspension is also supported by substantial evidence.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
February 26, 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 In Complaint 3, Complainant also alleged discrimination when on January 13, 2010, she was issued a Letter of Decision removing her from the Agency. Complainant withdrew this issue after it was resolved via settlement before the Merit Systems Protection Board (MSPB). Further, in orders prior to the hearing, the Equal Employment Opportunity Commission Administrative Judge recounted that Complaint 3 included approximately 200 non-selections from across the country, and new EEOC hearing numbers and Administrative Judge(s) would be assigned to adjudicate these claims. They were split off from this case.
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