0120141376
01-29-2016
Isabelle G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isabelle G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120141376
Agency No. 4J-481-0112-13
DECISION
On February 27, 2014, Complainant filed an timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 19, 2014, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 this complaint, Complainant worked as a Carrier (City) at the Agency's Kensington Post Office (Kensington Station) in Detroit, Michigan, until being involuntarily moved to the College Park Post Office in Detroit, Michigan.
On August 14, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. In [October 2012], 150 stops were added to her route;
2. She was told to report to the College Park Post Office on May 22, 2013; and
3. On May 25, 2013, she was placed on Administrative Leave.
Following an 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). 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). It found no discrimination.
Claim 1
Complainant stated that her manager - the Manager of Customer Service at Kensington Station (Manager 1) added 150 stops to her route to overburden her and get her off her route. Complainant wrote that before, she had 512 stops which was time verified as requiring eight hours daily, but her route was increased to 662 stops.
Manager 1 countered that annually each October, management and the National Letter Carrier's Association (NALC) union jointly work together in a process called "Joint Route Revision" to adjust routes to take into account route stop vacancies and growth with the goal of each route taking eight hours daily to complete. She stated that the union must agree with management and vice versa. Manager 1 wrote that while Complainant's stops were increased to 639, with delivery vacancies her actual total active deliveries were 471. She stated other Kensington full time carriers also had stops added to their routes - respectively 135, 109, 102, and 97. Manager 1 observed that in October 2013 (after Complainant was long off-duty) no changes were made to her route.
In her investigative summary, the EEO investigator, based on route summary report documentation in the record, wrote that in October 2013, comparative full-time Carriers at Kensington Station route deliveries respectively were 699 possible and 438 active, 602 possible and 491 active, 642 possible and 534 active, 611 possible and 465 active, 696 possible and 516 active, 603 possible and 492 active, and in October 2012 and October 2013 Complainant's Kensington route had 639 possible and 471 active.
In EEOC Appeal No. 0120141882 (Oct. 9, 2014), our appellate decision on Complainant's February 2012 prior EEO complaint, we found that the mail volume on her route routinely did not support eight hours of work. The record therein reveals this regarded the same route.
Claim 2 and 3
On or about August 30, 2012, Complainant at her son's football game had a physical altercation with co-worker 1, who was in a postal uniform. Co-worker 1 allegedly was having an ongoing affair with her husband. All three worked at Kensington Station. According to a grievance decision, Complainant was placed on Emergency Non-Pay status and issued a notice of removal. Complainant refers to Co-worker 1 as a "home wrecker." In a grievance excerpt Complainant submitted on the above actions, the union wrote she did not strike Co-worker 1 without provocation. According to Manager 1, Complainant jumped on Co-worker 1, and Complainant was arrested and bail was set. In an October 2012 statement, Complainant contended that Co-worker 1 swung first.
Eventually, an Arbitrator sustained the Emergency Placement and reduced the removal to a suspension without back pay. Complainant wrote that she was off work without pay for eight months. She was reinstated to Kensington Station, and returned effective May 18, 2013. Report of Investigation (ROI), Exh. 1.
On May 21, 2013, three days after she was reinstated to Kensington, the Manager of Customer Service Operations (Manager 2) assigned Complainant to the College Park Post Office starting on May 22, 2013. Manager 1 stated Complainant's reporting times and days off did not change. Manager 2 stated he reassigned Complainant because after returning to Kensington Station she displayed a threatening attitude and several employees voiced concern for their safety. He wrote his decision was upheld by a dispute resolution team. Manager 1 added that Complainant's husband worked at Kensington Station, they were going through a bitter divorce and custody battle for their children, and she had a restraining order on her husband. Complainant communicated that she did not want to be reassigned.
In a grievance on issue 2, which was resolved against Complainant, management's position was recounted as follows: upon Complainant's return to Kensington Station, several employees expressed unease and fear of her working there. Her husband also worked there and they were going through a bitter divorce and custody battle. Employees' awareness of the situation between Complainant and her husband and the violent anger she displayed in the past both inside and outside of work would create an unhealthy and unsafe work environment. When Complainant returned, some employees' greetings were met with cold, withdrawn, rude and unfriendly responses. The Threat Assessment Team met on May 21, 2013, and decided it would be in the best interest of the Agency to relocate Complainant to another station.
Complainant stated that her job was to come to work and do her job, not to make friends, and that she only talked to two people at Kensington Station, and did not smile and speak to people. She questioned how she was supposed to come back to work after losing her income, husband, and home and walk around talking to people she never spoke to before, and be laughing and smiling. She contended that she spoke to people who spoke to her.
Complainant wrote that she reported to the College Park Post Office on May 22, 2013, as assigned, and delivered mail, that her off day was May 23, 2013, and she reported there again on May 24, 2013, and delivered mail. But after completing the May 24 delivery, she was told to stop reporting because the assignment violated the collective bargaining agreement because she was moved from her bid. Complainant was placed on paid administrative leave effective May 25, 2013. She stated that she was an able-bodied employee who could work, and the Agency put her on administrative leave to give it time to figure out how to permanently prevent her return to Kensington Station.
The Step B grievance regarding the assignment to the College Park Post Office was resolved on July 24, 2013, with a decision that reassigning Complainant did not violate the arbitration decision and the CBA because of employee concerns and the Threat Assessment Team evaluation. Thereafter, Complainant remained on administrative leave.
Manager 1 stated that Complainant was placed on administrative leave pursuant to the Threat Assessment Team. She stated the team included herself, Human Resources, and the Postal Inspection Service, and they reviewed Complainant's record and medical documentation on her.2 In her report, the EEO counselor wrote that Manager 1 relayed that Complainant was sent for a Fitness-for-Duty examination and found not fit for duty. Manager 1 stated that Complainant did not violate a policy. In an email to the EEO investigator, the Agency Manager of Human Resources wrote that Complainant was not placed on administrative leave as a result of the Threat Assessment Team meeting. The Manager wrote that she could not release the Threat Assessment Team report because it contained confidential information, that she did not have a copy of the letter placing Complainant on administrative leave, and Manager 1 should have documents reflecting how Complainant's conduct precipitated the administrative leave. The record does not contain the letter placing Complainant on administrative leave, the Fitness-for-Duty examination report, nor documentation related to placing Complainant on administrative leave, other than what is recounted above.3
On appeal, Complainant writes that she remained on paid administrative leave until January 7, 2014, and thereafter the Agency stopped paying her but won't let her return to work. Complainant writes that the Agency won't let her return unless she signs a medical release, which she refuses to do. Complainant submits an Agency letter to her dated January 29, 2014, recounting that on August 6, 2013, the Agency's Great Lakes Area Senior Medical Director sent her a medical release asking for permission to contact her treating psychiatrist and provide him/her the psychiatric Fitness-for-Duty report, but Complainant did not sign the release (which it enclosed again). The Agency wrote that until Complainant did so, she would remain off duty, and could use her own leave to cover absences until the matter is resolved.4
Prior to her appeal, Complainant stated that in 2003, her husband assaulted her and was convicted of assault and battery - domestic violence, and she also was assaulted by him on April 12, 2012. According to Management's position in the grievance on issue 2, Complainant had a personal protection order against her husband effective to October 2013. Complainant asked why the Agency did not take action against her husband.
On appeal, Complainant writes that she has remarried and moved on with her life, and is an able-bodied employee who is able to work. She submits a copy of her wedding invitation showing the wedding ceremony was in February 2014.
ANALYSIS AND FINDINGS
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). 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).
Based largely on Complainant's recent prior EEO activity, the Agency found that Complainant established a prima facie case of reprisal discrimination. FAD, at 10. We agree.
Issue 1
In its FAD, pointing to Manager 1's explanation for adding 150 stops to Complainant's route, the Agency found management articulated a legitimate, nondiscriminatory reason for adding stops to Complainant's route. We agree. Specifically, with the agreement of the union, Complainant's route was adjusted, as were other routes, with the goal of it requiring eight hours daily to complete. The record shows that the number of active deliveries on Complainant's route were similar to the routes assigned to other full-time carriers at Kensington Station. Complainant has not shown this explanation was pretext to mask reprisal discrimination, or otherwise proven such discrimination regarding issue 1.
Issues 2 and 3
In its FAD, pointing to the explanations of Managers 1 and 2, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions, and Complainant did not prove reprisal discrimination.
EEOC Regulation 29 C.F.R. � 1614.108(b) requires that agencies develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. It provides that an appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.
Here, after about an eight-month absence, an Arbitrator awarded Complainant reinstatement, and she returned to work at the Kensington Station on May 18, 2013. Just three days later, Manager 2 involuntarily assigned her to the College Park Post Office, and three days after that management placed her on administrative leave. While Managers 1 and 2 explain the reasons for these actions, the record does not contain sufficient information to allow an independent determination on whether reprisal discrimination occurred.
Manager 2, who made the decision to reassign Complainant, cryptically stated that he did so because after Complainant returned to Kensington Station she displayed a threatening attitude and several employees voiced concern for their safety. He did not describe with any specificity what the employees voiced, or who they were. Management's position as recounted in the grievance on issue 2 refers to enclosed documents by employees who would give statements about the situation, but none are in the record. Nor did Manager 2 mention factors such as the Threat Assessment Team recommendation or medical documentation in making the decision to reassign Complainant, albeit this was referenced elsewhere in the record. The record does not contain the Threat Assessment Team report, or medical and other documentation relied upon, to the extent it was so, in making the decision to reassign Complainant. While the Agency provided the grievance decision on issue 2, this decision is not evidence.
By the same token, it is not even clear who made the decision to place Complainant on administrative leave. Manager 2 stated he concurred in the decision. Manager 1 stated she did not make the decision to place Complainant on administrative leave - rather this was due to the threat assessment meeting. But the Manager of Human Resources wrote Complainant was not placed on administrative leave due to the Threat Assessment Team meeting. All this needs to be clarified, and documentation relied upon on, including medical documentation to place and/or continue her on administrative leave (such as the Fitness-for-Duty examination) should be placed in the record.
We understand the Agency's position that the Threat Assessment Team report and identity of employee statements may be confidential, but the Agency has failed to provide even sanitized versions of such documentation or explain why it can't do so, nor has such evidence and statements been described with specificity by Managers 1 and 2. Further, statements were not taken from other relevant witnesses such as other participants on the Threat Assessment Team -- Postal Inspection Service and Human Resources. Management's position in the grievance on issue 2 contains a number of supporting arguments, but many are not backed up with any evidence - such as Complainant having a history of outrage and fights in and out of the Agency.
In short, Managers' 1 and 2 explanations for assigning Complainant to the College Park Post Office and placing her on administrative leave remain cryptic, and the investigator did not gather sufficient evidence on what led to these actions and the process for doing so. They should be asked to elaborate on things. We find that the investigation on issues 2 and 3 was insufficient. Further, Complainant contends that she was disparately treated from her husband and Co-worker 1. The record on this needs to be developed.
On appeal, Complainant writes that the Agency removed her from paid administrative leave after January 7, 2013, stopped paying her, and she has not returned her to work. On remand, the Agency should amend her complaint to include this claim.
The Agency's finding of no discrimination on issue 1 is AFFIRMED. Its finding of no discrimination on issues 2 and 3 is REVERSED. The Agency shall comply with the Order below.
ORDER
The Agency is ordered reinvestigate issues 2 and 3, as well as the amended issue concerning her removal from paid administrative leave after January 7, 2013, in accordance with this decision and 29 C.F.R. � 1614.108(b). Thereafter, the Agency shall issue a new FAD on issues 2 and 3, as well as the amended claim, appealable to the EEOC. The Agency shall complete these actions within 180 calendar days after this decision becomes final.5
A copy of the FAD must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
January 29, 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 On appeal, Complainant writes that Manager 2 was also on the team.
3 Manager 1 wrote there was no letter placing Complainant on administrative leave - this was done verbally by Manager 2. But Manager 2 stated he concurred in the decision to place Complainant on administrative leave, and the Manager (presumably a reference to Manager 1) placed Complainant on administrative leave based on conduct.
4 Complainant submits August 30, 2013 and January 31, 2014, medical provider letters restricting her to working on "her route only." The meaning of this has not been explained on appeal.
5 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed.
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