0120161181
05-29-2018
Karlene G.,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
Karlene G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120161181
Agency No. 4C190006615
DECISION
On February 27, 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 January 28, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established that management discriminated against her when she was placed on Emergency Placement and subsequently charged Leave Without Pay from April 21 through May 5, 2015; moved to another facility on May 6, 2015, moved to another facility on May 18, 2015 and issued a 14-Day Suspension.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Associate at the Agency's East Falls Station facility in Philadelphia, Pennsylvania.
On September 8, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (Lumbosacral sprain/strain, right sided sciatica. and exacerbation of lumbar degenerative disc disease) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, Section 501 of the Rehabilitation Act of 1973 when:
1. On April 20, 2015, she was placed on Emergency Placement and subsequently charged Leave Without Pay (LWOP) from April 21 through May 5, 2015;
2. On May 6, 2015, she was moved to another facility;
3. On May 18, 2015, she was moved to another facility; and
4. On August 11, 2015, she was issued a 14-Day Suspension.
Claim 1 - Placed on Emergency Placement
On April 20, 2015 Complainant was involved in a verbal altercation with another employee. On April 22, 2015, she was notified in writing that she was being placed in an Off-Duty status (without pay) due to the altercation. Complainant denied that there was an altercation, but acknowledged that there was a brief exchange of words, which included her admonishing the other employee involved to stop acting like a five-year-old child. Complainant was charged leave without pay from April 21, 2015 through May 5, 2015. The co-worker to whom she was speaking was also charged.
Claim 2 - Reassignment to Main Office Delivery
Complainant had been assigned to the East Falls Station. From May 6, 2015 to May 17, 2015, following her return to work, she was reassigned to Main Office Delivery [MOD] in Philadelphia. The Complainant inquired as to why she was being reassigned to the Main Office Delivery (MOD) and not to a location within Area B. However, management continued to instruct her to report to the MOD at 9:00 a.m. Complainant considered this reassignment to be "additional discipline." Complainant did not file a grievance on this matter.
Claim 3 - Reassignment to the West Market Station
Complainant was reassigned to the West Market Station from May 18, 2015 to July 11, 2015. Complainant asked why she was being reassigned from MOD to another facility, but states that she was unable to obtain a reason. Complainant did not file a grievance on this matter.
Claim 4 - Issued a Notice of 14-Day Suspension.
Complainant testified that she was issued a Notice of 14-Day Suspension on August 11, 2015, because of the altercation with a co-worker on April 20, 2015. Complainant asserted that although she explained in her statement regarding the events of April 20, 2015 that she merely expressed to her co-worker that she needed to act more mature, the comment did not rise to the level of creating a hostile work environment. Complainant filed a grievance on this matter. 2
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. Pursuant to Complainant's request, 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
On appeal, Complainant, in pertinent part, reiterated her contention that the Agency's actions were discriminatory.
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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that 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 802 n.13. 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, for purposes of this decision, Complainant established prima facie cases of discrimination based on disability and reprisal, the Agency has articulated legitimate, non-discriminatory reasons for its actions regarding Complainant. Complainant, according to the Agency, engaged in unacceptable conduct. This resulted in her being placed in emergency placement, her reassignments to locations away from her assigned duty station where there was needed work, and the issuance of the notice of suspension. The record indicates that both Complainant and her co-worker were placed on emergency placement, charged with leave without pay, moved to different facilities and given the same suspension. We find no persuasive evidence that any of the Agency's actions were based on discriminatory animus,
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.
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
___5/29/18_______________
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.
2 The record contains a letter dated September 2, 2015 in which the Union advised that the grievance was settled "in that her 14-Day Suspension dated August 6, 2015, was rescinded and expunged and all evidence of the 14-Day Suspension removed from the complainant's official records."
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