Jayna A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120171935 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayna A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171935 Agency No. 4G-730-0052-16 DECISION On May 11, 2017, 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 April 10, 2017 final decision 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. BACKGROUND Introduction At the time of events giving rise to this complaint, Complainant worked as a Part-time Flexible (PTF) Mail Processing Clerk at an Agency post office in Burn Flats, Oklahoma. On November 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on disability (Clostridium difficile and Irritable Bowel Syndrome) when: (1) since June 11, 2016, management reduced Complainant’s work hours and (2) management harassed Complainant about using leave for medical appointments and threatened to discipline her if she was absent on Mondays. 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. 0120171935 2 In a Partial Dismissal, dated November 28, 2016, the Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency accepted claim (1) for investigation. Investigation During the EEO investigation, Complainant stated that her medical condition causes fecal incontinence, which requires her to stay near a restroom, and she has regular medical appointments, but no work restrictions. Complainant stated that she provided her supervisor with medical documentation from each of her doctor’s visits. Complainant stated that she was told that she would have 30 hours of clerk hours per week, but her hours were reduced to 14.45 hours per week. Complainant stated that management informed her that it hired a second PTF clerk because Complainant was sick and had too many medical appointments. The Postmaster (“S1”) stated that Complainant’s medical condition had no impact on her work performance. However, S1 stated that the Agency hired a second PTF clerk so that the post office could run efficiently as an additional PTF clerk left for a job with more hours (full time), and she, as Postmaster, was only allowed to work up to 15 hours per week in clerk duties. She said Complainant’s hours were reduced to sustain the second clerk’s employment. The Post Office Operations Manager (“S2”) stated that a “POStPlan” Arbitration Decision imposed staffing changes at Associate Offices nationwide. S2 stated that postmasters could work up to 15 hours per week in clerk (bargaining unit) duties, and that the Agency hired PTF and Postal Support Employees (PSE) to comply with the arbitration decision and cover absences, leave, and other needs of the service. S2 stated, if a Postmaster worked over 15 hours per week in the clerk craft, the union selected a clerk to be paid the hours for the overage of hours regardless of whether a clerk was available to work the hours. S2 stated that the Agency hired additional PTFs to ensure Postmasters did not work more than 15 bargaining unit hours. S2 stated that PTFs do not have guaranteed work hours or seniority status. The record contains a Memorandum of Understanding between the Agency and the American Postal Workers’ Union, dated September 22, 2014, regarding “POStPlan: Staffing of Offices, Filling of Assignments, PSE Usage and Conversions.” Post-Investigation Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision incorporated the dismissal of claim (2) and, for claim (1), concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. 0120171935 3 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) (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”). Claim (1) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 256. 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, non-discriminatory 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on disability, the Agency articulated legitimate, nondiscriminatory reasons for reducing the number of hours Complainant worked per week. The Agency stated, under a POStPlan Arbitration Decision, it imposed staffing changes at Associate Offices nationwide. The Agency stated that postmasters had the right to work 15 hours per week in clerk duties and that it hired PTF clerks and PSEs to comply with the arbitration decision and cover absences, leave, and other needs of the service. 0120171935 4 The Agency stated that it hired additional PTFs to ensure Postmasters did not work more than 15 bargaining unit hours. The Agency stated that PTFs do not have guaranteed work hours or seniority status. S1 explained that she had to hire an additional PTF to comply with the arbitration decision and because of the loss of another PTF clerk. As a result, Complainant’s hours were reduced to support the additional PTF position. Based on this evidence, we find that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Claim (2) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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, disabling condition, genetic information, or reprisal. 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In instances where a complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's claims, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment (harassment) claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (March 18, 1999). Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996). Based on the above, we agree with the Agency that Complainant’s allegation that it harassed her when S1 complained about her using leave for medical appointments and threatened to discipline her if she was absent on Mondays fails to state a claim. 0120171935 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination as to claim (1), and dismissing claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1). 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. 0120171935 6 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation