0120152779
12-06-2017
Kasi J.,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
Kasi J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152779
Agency No. 4G350013214
DECISION
On August 21, 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 July 17, 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., 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 was discriminated against when she was: (1) sexually harassed by a co-worker; (2) forced to work harder than a co-worker on unidentified dates; denied a request for a transfer; and suspended for fourteen (14) days.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Tuscaloosa Post Office facility in Tuscaloosa, Alabama. On November 29, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability (Severe Depression) when: (1) she was allegedly sexually harassed by C-1, a co-worker, from December 2013 through July 2014 who made verbal remarks to her and other female employees that Complainant considered inappropriate; (2) she believed that she was forced to work harder than another female co-worker; (3) she requested, but was denied, a transfer to another postal facility; and (4) on August 14, 2014, she was issued a fourteen (14) suspension for excessive absenteeism.
The Agency investigated her allegations. With regard to Complainant's allegation of sexual harassment from December 2013 through July 2014, the record indicates that she did not inform management of C-1's conduct or otherwise avail herself of the Agency's process for reporting allegations of sexual harassment until C-1 had been promoted and transferred to another postal facility. In August 2014, after being notified by Complainant of C-1's conduct, the Postmaster immediately contacted C-1's new facility, and that facility removed him from his position pending an investigation. The Agency's investigation determined that no one had witnessed the alleged harassment, but C-1 acknowledged making inappropriate comments to Complainant, which he characterized as "flirting." C-1 also maintained that Complainant never told him to stop.
With regard to her allegation that from January 2013 and August 2014, she was forced to work harder than another female co-worker, C-2, the Agency found no evidence to support Complainant's allegation. Complainant provided no evidence, other than her personal assertions, to support her allegation. According to Complainant, she would come to work and do what needed to be done. C-2, however, would go to the Window Training area because that was what she wanted to do and because it made it easier for her to take care of her children. Complainant noted that she had seniority over C-2 and did not get the chance to attend Window training or to work in that area. Complainant maintained that C-2 would complain to management and get to perform Window Clerk work as if she was a full-time employee. Although Complainant acknowledged that C-2, because of a broken finger, was assigned less strenuous work for 6 week, she attributed her favorable treatment to C-2 being flirtatious with co-workers and management officials. Complainant did acknowledge that she did not inform management that she felt she was being harassed when she was forced to work harder than C-2.
With regard to management's refusal to transfer Complainant to another facility in October 2014, the Agency denied the transfer based on the fact that Complainant had more than one year of poor attendance, and had not met her 12-month career contractual obligation. Complainant felt that if she had been allowed to transfer outside of Tuscaloosa, she would have been "better off," because she did not have any problems with harassment working in the Birmingham annex. Complainant's affidavit is not clear whether she was requesting the transfer as a reasonable accommodation for medical reasons associated with her disability. Furthermore, the record does not contain any medical evidence indicating that she needed a transfer in order to perform the essential functions of her position. We note in this regard that Complainant maintained that her "mental illness, and major depression" supported her request for a transfer as an accommodation, but she did not provide a medical diagnosis from a doctor supporting a claim for a reasonable accommodation based on major depression. To the contrary, the record contained a letter from E-1, a Licensed Clinical Social Worker, dated December 3, 2014, indicating that Complainant had been under E-1's care for psychiatric evaluation and treatment beginning April 22, 2014, and that she was able to return to full duty without limitations as of December 3, 2014. The record also contained FMLA documentation indicating that Complainant took leave beginning on July 19, 2014, for a serious health condition. E-1 filed out the relevant sections indicating that Complainant complained of depression, anxiety, sleep and appetite disturbances, fatigue and isolating herself from others. The diagnosis was "major depression, moderate, without psychosis."
With regard to the issuance of a fourteen (14) day suspension, the Agency noted Complainant's attendance record which indicated that she had maintained a poor attendance record for more than a year and was undergoing progressive disciplined for her numerous absences. The suspension letter cited several absences by Complainant and noted that her prior discipline consisted of a seven (7) day suspension for failing to maintain regular attendance, and a letter of warning for the same reason.
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. In accordance with 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
Among other things, Complainant submitted a note from E-1, dated June 3, 2015, indicating that Complainant has been under her care for "psychiatric evaluation and treatment beginning January 28, 2015. E-1 stated that Complainant had been "re-evaluated" and was able to return to work for full-duty without limitations as of "today." No further explanation or new information was provided.
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").
Sexually Harassment by Co-Worker
The record indicates that Complainant was subjected to unwelcome verbal comments by C-1. Although the exact nature of the comments was not provided, the record indicates that Complainant did not inform management of C-1's behavior until August 2014 when she told the Postmaster. At this time, C-1 had already left the work place for a promotion at another facility. The Postmaster promptly notified the new facility of the allegations and C-1 was removed from his position pending an investigation. We find no persuasive reason for finding the Agency liable for C-1's conduct given that management was not informed of the conduct until after it had ceased and took prompt action to report it once they were informed.
Complainant Was Forced to Work Harder Than Another Female Co-Worker
Complainant contends that she was forced to work harder than C-2. The record is not clear whether Complainant is basing this claim on sex or disability. If it is based on sex, the claim fails because Complainant cannot establish a prima facie case since both she and C-2 are female. Assuming, however, for purposes of this decision, Complainant established a prima facie case of discrimination based on sex and disability, the Postmaster denied her contention that she was worked harder than C-2. The Postmaster noted that they both performed different duties. C-2 requested to attend Window training and was trained as a Window Clerk; therefore, she mostly worked at the window. Both employees worked in the box section, but Complainant, because she was not window trained, could not perform window duties. The Postmaster testified that Complainant never requested window training. We find no evidence of pretext here. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us.
Complainant Transfer Request
Assuming Complainant established a prima facie case of discrimination based on sex and disability, we find that the Agency provided a legitimate non-discriminatory reason for denying Complainant's transfer request, i.e., she had not been regular in attendance in the preceding year, and had not met her 12-month contractual obligation. We find no evidence of pretext.
To the extent that Complainant's transfer request was a reasonable accommodation request, we find, even if we were to assume that she was a qualified individual with a disability, there is no evidence that she was entitled to a transfer as a form of reasonable accommodation. We note in this regard that there was no medical evidence that she needed a transfer in order to perform the essential functions of her position. According to E-1, Complainant was able to return to full duty without limitations as of December 3, 2014. Accordingly, we find that she was not denied a reasonable accommodation.
Complainant's 14-day Suspension
A review of Complainant's attendance record makes clear that she was excessively absent. We find no evidence of pretext with regard to her suspension.
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
_12/6/17_________________
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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