Kimberly H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 8, 20180120162418 (E.E.O.C. Aug. 8, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimberly H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120162418 Agency No. 4G-752-0062-16 DECISION On July 16, 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 June 16, 2016, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-Time City Carrier at the Garland, Texas, Post Office located in Garland, Texas. On February 18, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (on-the-job wrist injury) and age (48) when: (1) on a date to be specified, she was charged Leave Without Pay (LWOP); and (2) on dates to be specified, she was placed off the clock. 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. 0120162418 2 After 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 EEOC Administrative Judge (AJ). 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. PROCEDURAL DISMISSALS The Agency dismissed the following claims: (a) on dates not specified, Complainant was denied Continuation of Pay (COP); (b) on dates not specified, Complainant was denied union time; (c) on dates to be specified, Complainant was verbally abused by management; and (d) on November 17, December 9, 10, 2015, Complainant was not permitted to carry her route. We agree with the Agency’s dismissal of claims (a) and (b) because they are collateral attacks on another forum’s proceeding. See Kleinman v. U.S. Postal Ser’v., EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Ser’v., EEOC Request No. 05930106 (June 24, 1993). We agree with the Agency and find insufficient facts alleged to establish that Complainant suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy with regard to claims (c) and (d). See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We note that Complainant does not assert facts that she was subjected to any adverse employment action or denied any entitlement in relation to a term, condition or privilege of employment as a result of the incident she raises in her complaint. In addition, we agree with the Agency that the totality of the circumstances and the actions complained of, even if true, are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment. see Bums v. U.S. Postal Service, EEOC Appeal No. 01A60420 (May 10, 2006) and Simpson v. Department of Transportation, EEOC Appeal No. 01A53663 (May 2, 2006), citing Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). We note that Complainant fails to specify the basis for her disagreement with the dismissal of these claims. Accordingly, we affirm the Agency’s dismissals in accordance with 29 C.F.R. § 1614.107(a)(1). FACTUAL BACKGROUND The record shows that Complainant is limited to an eight-hour shift each day and must attend physical therapy once each week. Complainant indicates she was placed off the clock on dates she had therapy, and was charged leave without pay and was not allowed to return to work. We note that Complainant did not return her affidavit that the EEO investigator sent to her and does not request compensatory damages in her complaint. 0120162418 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”). 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 Cnty. 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). Upon review of the record, we find that, assuming Complainant established a prima facie case of discrimination based on age and disability, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Customer Service supervisor (S1A) testifies that he placed Complainant off the clock on December 3, 2015, because she repeatedly failed to follow instructions. S1A further states that Complainant was not on an Emergency Placement. In addition, S1A states that Complainant was erroneously charged leave without pay from December 3, 2015 through December 8, 2015 by the closing supervisor (S1B), who was not aware that Complainant was in a paid leave status. S1A also states that the error was corrected when Complainant returned to work on December 9, 2015. S1A further states that Complainant filed a grievance and the grievance was resolved. The Customer Service manager (M1) corroborates S1A’s testimony. The documentary evidence shows that the December 3-8, 2015 LWOP charges were changed from LWOP to administrative leave. We find that the record is devoid of evidence that similarly situated comparison employees who are outside Complainant’s protected classifications were treated more favorably. We also note that Complainant fails to present evidence that S1A’s legitimate, non-discriminatory explanation for the employment actions was a pretext for discriminatory animus. On appeal, Complainant asserts that she returned the affidavit to the EEO investigator. 0120162418 4 The Agency indicates in its response to Complainant’s appeal that it received her affidavit response after the EEO investigation was completed. However, the Agency notes that nothing in Complainant’s affidavit response would have changed the outcome of the Agency’s decision. We note that Complainant failed to attach a copy of the affidavit responses that she allegedly sent to the EEO investigator. We also find that her arguments on appeal fail to indicate that any of the responsible management officials’ employment actions were motivated by age or disability-related animus. CONCLUSION Accordingly, 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. 0120162418 5 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 August 8, 2018 Date Copy with citationCopy as parenthetical citation