0120170763
10-12-2018
Ileana H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ileana H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170763
Agency No. 4C-370-0022-13
DECISION
On September 16, 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 August 19, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that she was discriminated against based on race, sex, and age when she resigned after she was forced to report for work under threat of losing her job, despite having made prior arrangements to take her son for a medical appointment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate (RCA) at the Agency's Tullahoma Post Office (TPO) facility in Tullahoma, Tennessee.
On February 27, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (White/African-American children), sex (female), and age (46) when on October 26, 2012, she resigned after she was forced to report for work under threat of losing her job, despite having made prior arrangements to take her son for a medical appointment.
Complainant claims that she gave notice to her supervisor (S1) and received prior approval to be unavailable to work on three dates. (Report of Investigation [ROI] P61. Complainant states that only when an Acting Supervisor, (S2) was involved was there a problem. She alleges that on October 26, 2012, she received a call from S2, telling her to come in to run a route because the carrier on that route needed to go home sick. (ROI P60).
S2 testifies that on the day of the alleged incident, one of the rural route carriers called in sick and he called the substitute employee who said he would come in but if Complainant wanted to work, she could have the hours.
Complainant states that she told S2 that she was unavailable to come in that day due to her son's medical appointment and that he had known of this for some time. She states that S2 told her that he had no one else to run the route because the substitute (the first leave replacement) was out of town and that 100% of employability is availability. She states S2's statement led her to believe that if she did not show up for this route, she could be terminated.
S2 stated Complainant informed him that she had put in as not available and he told her he did not know that because he did not have the schedule in front of him. (ROI P76). S2 indicated that he did not say he would fire Complainant if she did not come in to work. He stated Complainant started "rambling away" about something and he said he just needed to know if she wanted to come to work or did he need to call the substitute back. He stated that Complainant stated that she would work and he thought that was the end of it. He stated that at no point did he tell Complainant that her job was on the line because he had an alternative. (ROI P76).
Complainant argued that S2 called her in to work on the day of the alleged incident in order to harass her. (ROI page 61). She cited a number of prior incidents involving S2 including his not caring when she received bad news by telephone, and when he yelled across the room at her a year earlier. She claimed that these events were aggravated by S2 throwing a Safety Award at her making her upset and unable to restrain her emotions.
Complainant stated that she put in her two-week resignation notice because she felt like she was being discriminated against and harassed. S2 testified that Complainant did not tell him on October 26, 2012, she was resigning. He stated that he hardly spoke to her on that day after she came in. He also stated that he handed safety driving awards to all eligible employees including Complainant and did not throw the award at her as alleged. S2 stated that when he asked Complainant to verify her matrix, she told him she was resigning because she was "tired of being treated like this."
Complainant states S2 should have known she was too upset to drive a vehicle on the day of the alleged incident. Complainant did not assert that she told S2 that she could not continue to work, or that it was unsafe for her to finish her route.
S2 indicated that Complainant's allegations and resignation might have stemmed from prior events, including the termination of her daughter 2 years earlier. He stated he was unaware she was too upset to drive. He stated he did notice that she was a little upset, but she was talking to everybody else around her and didn't say anything to him. She never asked him not to work and he never told her to continue to work." (ROI P77).
Complainant alleged that S2 has been trying to stifle her ability to provide medical attention for her son for some time. (ROI P20). She stated that he started treating her differently when he found out she had Black children after she brought her son to work one day when he had an emergency.
S2 stated that he has never met Complainant's son, and is not sure of his race. (ROI P75).
Complainant alleged that she was forced to work on her day off under the threat of being fired; and that other employees were treated more favorably because they were not forced to work.
S2 testified that Complainant was not forced to work upon threat of being firing. He states that there were no other employees in a similar situation as Complainant because she was not forced to work.
Complainant argues that S2's treatment of her is also based on her sex and her age. She claims S2 used the day she was called in to work as another chance to degrade her because her son is Black and to emotionally disturb her because she is a woman. She claims S2 treated the other substitute employee better because he is a younger male, who he believes is more valuable to him and has more years of employability. (ROI P64, P59).
As comparators, Complainant identified three older women Carriers whom she stated were treated more favorably than she was, since they had been given unavailability dates for things such as vacation and were never called in to cover an absence. (ROI P66). Complainant testified that no one else has ever had to cancel a medical appointment. (ROI P59, 66).
The Postmaster, (S3), testifies that all three identified comparators have had to cancel prior appointments for work.
The Agency asserts that while it may be true that S2 was not listening to Complainant when he called her to come to work on October 26, 2012, and while he may not have been sympathetic or sensitive to her situation, S2 did not intend to discriminate against Complainant based on discriminatory animus.
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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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, among other things, reiterates her allegations adding that the substitute employee and a female employee, both White, younger, and without Black children were treated more favorably as they did not have to work on their off days.
The Agency asserts that S2 took no adverse action against Complainant.
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
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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, 441 U.S. at 804 n.14. 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). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of race, sex, and age discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. In this case, Complainant stated that she felt compelled to resign based on a series of upsetting events. She also testified that she felt compelled to go in to work on October 26, 2012, because she felt she could be terminated. She does not claim, however, that she was actually told she would be terminated if she did not come in to work, and does not claim that she had ever before been threatened with termination.
The Agency asserts, and the records show that no adverse action was taken against Complainant. Complainant voluntarily chose to resign. Complainant asserts that S2 treated her unfairly because she had children who are Black. However, S2 stated that he was unaware of the fact that Complainant's children were Black. We find no evidence in the record that supports Complainant's contention that he was aware. The Agency also asserts that while it may be true that S2 was not listening to Complainant when he called her to come to work, and while he may not have been sympathetic or sensitive when she received bad news by telephone, and when he yelled across the room at her a year earlier, S2 did not intend to discriminate against Complainant as alleged.
In an effort to show pretext, Complainant alleged that S2 treated the other replacement employee more favorably because of his age and employability. She also identified three comparators she alleged received more favorable treatment because they were not called in to work on their days off or cancel medical appointments, and therefore were not forced to resign or retire from employment. However, the record did not support Complainant's allegations. The record indicated that all three identified comparators have had to cancel prior appointments for work; therefore, they were not treated more favorably.
Complainant alleged harassment lead to her constructive discharge from her employment. However, Complainant failed to show that her working conditions were so difficult that any reasonable person in her position would have felt compelled to resign or retire. The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). While S2's request that Complainant report to work on her off day was unwelcomed, and while Complainant may have believed that being called into work on her off day was harassing, the record do not show that S2's actions were either discriminatory or intolerable. We also find no evidence that Complainant took any steps to apprise management of her alleged unfavorable treatment by S2 or to afford the Agency the opportunity to address any concerns she had about his behavior.
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 because the preponderance of the evidence in the record does not establish that discrimination occurred.
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
_10/12/18_________________
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.
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