0120160721
05-30-2018
Janet B.,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
Janet B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160721
Agency No. 4G-780-0094-15
DECISION
On November 25, 2015, 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 November 2, 2015, 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 which found that Complainant did not show that she was subjected to discrimination or discriminatory harassment.
ISSUE PRESENTED
The issue presented is whether the Agency correctly determined that Complainant was not subjected to discrimination or discriminatory harassment as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Technician at the Agency's Austin Postal facility in Austin, Texas. On May 26, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), sex (female), and reprisal for prior protected EEO activity when:
1. On a regular basis, her supervisor has targeted her for discipline, attempted to have others provide written statements against her and held her to a different standard than her coworkers;
2. She was subjected to a hostile work environment in that her coworkers sabotaged her work, followed her while she was on and off the clock, harassed her about wearing her ID badge, and used unprofessional, profane language around her;
3. On December 29, 2014, she was charged with .09 units of unscheduled leave when she was late for work;
4. On December 30, 2014, she was put off the clock, subsequently, on January 22, 2015, she was issued a Notice of 7 Day Suspension; and
5. On April 9, 2015, she was issued a Notice of 7-Day Suspension.
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 and discriminatory harassment as alleged.
Specifically, management explained that assuming Complainant established a prima facie case of discrimination as to all of her protected bases, the Agency articulated legitimate, nondiscriminatory reasons for claims 3 - 5. Management indicated that with respect to claim 3, staff had been told that they would be charged leave for any time over .08 units when they were late for work. Complainant was .09 units late so she was required to fill out a leave form.
Regarding claim 4, where she was put off the clock and was issued a 7-day suspension. Complainant's supervisor indicated that she noticed that Complainant was missing from her work station for about 25 minutes. Complainant was questioned about her whereabouts and gave three different responses. She was asked to complete a leave slip. Complainant maintained that she had done nothing wrong. She threw the leave form on the floor and yelled at the supervisor. Complainant was instructed to clock out and go home. She was escorted out the building. Management maintained that the issuing of the 7-day suspension had nothing to do with her race, sex, or prior EEO activity. Complainant grieved the suspension and it was reduced to an official discussion.
Complainant was issued a Notice of 7-Day suspension, with respect to claim 5, for failure to follow instructions and not having her ID badge displayed and visible. Management indicated that Complainant had been previously asked to wear her badge visibly on her person while on official duty but had repeatedly refused to do so. As a result, she was issued a 7-day suspension. Complainant also grieved this matter. Management maintained that the comparators offered by Complainant were not similarly situated as once they were told to come to work on time, or to wear their badge they complied while Complainant did not.
With respect to Claims 1 and 2, Complainant's claims of discriminatory harassment, Complainant's supervisor explained that Complainant has been told that it is his job to supervise, enforce policies and to ask certain things of her. He maintained that Complainant was initially receptive to his guidance; however, as time progressed, she became increasingly resistant to instructions. He maintained Complainant complained about nearly all of her co-workers in the unit, by name, through e-mail even though she was instructed not to use this method, but rather to contact the management staff or her union representatives about her concerns. Complainant's supervisor asserted she had a history of making accusations against her co-workers.
Complainant's supervisor contended that Complainant, to the best of his knowledge and recollection, never had witnesses to substantiate her accusations that she brought to management and as a result, her allegations and accusations could not be corroborated, and no action could be taken to address her allegations. He attested that Complainant brought allegations of harassment and/or a hostile work environment to the attention of management; however, she failed to provide any written statements to substantiate the allegations, naming persons, dates, times, locations, circumstances, etc., for an investigation to continue. Complainant's supervisor explained that he requested assistance from the local Postal Inspector to investigate allegations that co-workers had made that Complainant was walking by her and hissing, and allegations that Complainant was failing to properly and visibly display her postal identification badge while on official duty, even after this failure was brought to her attention. He averred the Postal Inspector investigated these allegations, as well as other concerns that Complainant brought up at that meeting, on or around Wednesday, March 18, 2015, however, because Complainant failed to provide any written statements to substantiate her allegations, she was informed that the allegations were unfounded.
Further, with regard to Claim 1, where Complainant alleged that management targeted her for discipline, attempted to have others provide written statements against her and held her to a different standard than her coworkers. Complainant's supervisor explained that a driver from Business Inc. came into the office to complain about Complainant's unprofessional behavior. After listening to the customer, Complainant was called into the office and told her that her behavior was unacceptable and that it would not happen again. Further, Complainant's supervisor indicated that contrary to Complainant's argument all employees are required to take leave when they are more than .08 units late. Also, Complainant was never disciplined or prevented from using her leave. Complainant's supervisor explained that when she approached other employees about a mistake they were approachable, they listened to what she had to say and corrected the deficiency. Complainant's supervisor indicated that they were only trying to get Complainant to do her job correctly. Complainant's supervisor denied trying to "brainwash" or "bully" Complainant into admitting that she was "no good, crazy, and worthless." Management asserted that Complainant's race, sex, and prior EEO activity were not factors considered in this matter.
Complainant's supervisor also indicated that Complainant alleged a safety concern in the work area. He averred that he instructed Complainant not to sit at the work station that was the subject of her safety concern until such concern was remedied, but she adamantly refused to sit anywhere else. Complainant was put on notice, that if she continued to put her safety at risk where she felt there was a safety concern, and she got injured at that location, her supervisor would terminate her for failure to work safely.
Complainant's supervisor denied that he told her co-workers to write or submit any statements against her. He explained that any statements that had been submitted to him regarding Complainant had been for a specific behavior, such as some verbal altercation, or her failure in the performance of her duties. He maintained that he had never solicited a written statement from Complainant's co-workers addressing or disparaging her reputation. He averred there had been numerous complaints from the customers and drivers of companies doing business with the Business Mail Entry Unit in Austin, Texas regarding Complainant's unprofessional behavior toward them.
With regard to Claim 2, where Complainant alleged that coworkers sabotaged her work, followed her while she was on an off the clock, harassed her about wearing her ID badge and used unprofessional, profane language around her. Complainant's supervisor maintained that management was unaware of coworkers sabotaging her work, but that they were aware that she had a problem with a coworker but the source of the problem was not clear. He also maintained that they were not aware of anyone following Complainant.
ANALYSIS AND FINDINGS
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").
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination as to all her bases, the Agency has articulated legitimate, nondiscriminatory reasons for its actions as was addressed above. We find that other than Complainant's conclusory statements that she was subjected to discrimination and discriminatory harassment she has not demonstrated that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Other than disagreeing with management's managerial style she has not shown that discriminatory animus was involved in any of their actions.
Further, harassment of an employee that would not occur but for the employee's race, color, sex, or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
In the instant case, we find that even if consider all of Complainant's claims, we find that they are not severe or pervasive enough to establish a hostile work environment. We find the incidents cited by Complainant are ordinary work environment place incidents. The record indicates that management was attempting to manage Complainant's work product and time management and she was resistant to their suggestions. See Harris v. Forklift Systems, Inc., supra. To the extent that Complainant is maintaining that management was not kind in their approach, the Commission has long held that Title VII is not a civility code.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not show that she was subjected to discrimination or discriminatory harassment.
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
_5/30/18_________________
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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