0120142549
11-29-2016
Kylee C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kylee C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142549
Hearing No. 550-2012-00378X
Agency No. 4F945004712
DECISION
Complainant filed an appeal from the Agency's June 5, 2014 final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Aptos Post Office facility in Aptos, California.
On April 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of "race" /national origin (Hispanic), sex (female), and disability ("physical and mental") when she was "subjected to continuing violations of harassment, disparate treatment, and a hostile work environment." In support of her hostile environment claim, she alleged, inter alia, that the Agency violated an EEO Settlement Agreement,2 subjected her to work assignment overload, violated the Privacy Act, issued her a 14 day suspension, retaliated against her, and falsely accused her of failing to follow procedures.
The Agency characterized the accepted claims as alleging discrimination, when:
1. Beginning July 20, 2011, Complainant was belittled, criticized, humiliated, threatened, intimated, and had her work assignment overloaded;
2. On an unspecified date in September 2011, management "lost her approved 3971 leave forms;"
3. On November 23, 2011, management required her to provide medical documentation for an absence;
4. On December 29, 2011, she was issued a 14 Day Suspension; and
5. On an unspecified date, Complainant was denied a reasonable accommodation.
The pertinent record reveals the following facts. Complainant is a Hispanic woman. Her immediate supervisor was the Customer Services Supervisor (Female Hispanic) (RMO1). She was also supervised by a Chinese -American male (RMO2). Her third level supervisor was the Postmaster (American female) (RMO3). Complainant's national origin and sex were known to management.
Complainant also had prior known EEO activity and had entered into two settlement agreements with management.
Complainant had a Modified Job Assignment and medical restrictions. Complainant described herself as having a medical restriction of "lifting, sitting, standing, walking, climbing, kneeling, bending/stooping, twisting, pulling / pushing, grasping, fine manipulation, reaching above shoulder, driving, temperature extremes, fumes / dust, and noise." To accommodate her work limitations, the Agency permitted Complainant to move and redistribute mail as she saw fit in order to keep the workloads within her lifting limitations. She was not required to work more than eight hours in any workday and was given time as needed to attend to her medical appointments. She sometimes did not complete her work assignments within the eight hour period. Complainant states that "the failure to abide by the Appellant's medical restrictions has been and still is the source of the problem." See page 32 of Appellant's Brief in Support of Appeal.
Claim 1 - Hostile work environment
Complainant alleges that during a 90 day period from September 27, 2011 through December 29, 2011, she was subjected to "slights, rebukes and incidents" and these exchanges made her feel hurt and harassed. Complainant maintained a written daily log (journal of notes) in which she noted 14 incidents. One of the noted incidents was that the Agency provided Complainant with notification that her Family and Medical Leave Act benefits had expired. She does not dispute the expiration of the benefits, but she asserted that the Agency should not have issued her the notice.
Claim 2 - Lost Leave Forms
In September of 2011, the Acting Supervisor and RMO1 could not find a leave form indicating that Complainant's leave request had been previously approved. It is undisputed that Complainant was not denied any of the requested leave. The record also suggests that the leave forms for other employees were sometimes lost.
Claim 3 - Medical Documentation Required
It was undisputed that Complainant, and other employees, were required to submit medical documentation for sick leave taken in connection with vacation time.
Claim 4 - Suspension
Complainant's restrictions limited her delivery of mail to no more than six hours per day. She acknowledges that she sometimes failed to complete all of her work assignments within the allotted eight hour daily timeframe. It is also undisputed that management officials observed what it perceived to be "dilatory" behavior and "time-wasting practices" on the part of Complainant. Management issued Complainant a Notice of Suspension on December 29, 2011. Other similarly situated employees were similarly disciplined for having engaged in similar time-wasting and inefficient activities, including those not in her protected classes.
Claim 5 - Reasonable Accommodation Request
Independent observations of Complainant's work performance corroborated the fact that Complainant was able to perform the essential functions of her job. To accommodate her work limitations, the Agency nevertheless permitted Complainant to move and redistribute mail as she saw fit in order to keep the workloads within her lifting limitations. She was not required to work more than eight hours in any workday and was given time as needed to attend to her medical appointments. Complainant asserts that the Agency did not effectively abide by her medical restrictions, which limited her to six hours per day delivering the mail.
AJ's Decision
The AJ granted the Agency's Motion for Summary Judgment. The AJ determined that the undisputed record in this case "is comprehensive, complete, impartial, and constitutes an appropriate basis upon which to render a decision without a hearing in favor of the agency." The AJ concluded that there were no material facts in genuine dispute and that there were no genuine issues of credibility to be determined on the Complainant's claims of discrimination.
Next, the AJ reasoned that the record evidence did not support the establishment of a prima facie case of race/ national origin, sex or reprisal discrimination, because Complainant was not subjected to any adverse personnel action or because Complainant failed to identify similarly situated individuals outside of her protected classifications who were treated more favorably under similar circumstances. The AJ also stated that there was no evidence that shows that the alleged incidents were due to Complainant's protected classes.
The AJ granted Complainant the benefit of all factual inferences favorable to her, but found that she was unable to establish her complaint based upon a theory of disparate treatment. With regard to the Agency's notice to her that her Family and Medical leave Act benefits had expired, the AJ noted that Complainant did not contest the expiration of these benefits and did not claim that she suffered any harm, for which relief could be granted, because of her receipt of the notification.
With regard to the lost leave form, the AJ reasoned that Complainant had not been denied leave and did not show that she experienced any tangible or material adverse personnel action when the leave forms were lost.
With regard to the request for medical documentation, the AJ found that there was no evidence indicating that Complainant was treated any differently than any of her similarly situated co-workers who were also required to submit medical documentation. The AJ found that there was no evidence to the contrary and no evidence of pretext.
With regard to the suspension, the AJ found that the undisputed evidence indicated that others were disciplined for engaging in time wasting practices and that the time wasting practices were unrelated to any of her disability or accommodation issues.
Further, the AJ assumed that the incidents occurred as alleged, but found that the incidents did not constitute unlawful harassment. The AJ also stated "there is no evidence in this record indicating that any of the incidents or exchanges occurred because of her race/national origin, sex, disability or prior engagement in EEO activity." The AJ concluded that "complainant's expressions of displeasure about her supervisors and managers do not satisfy [her] evidentiary burden on summary judgment."
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant "strongly disagrees" with the AJ's decision and Agency decision. She states that the Agency improperly limited the scope of her claims. She maintains that she "submitted an abundance of evidence that shows the Agency engaged in lies, abuse, retaliatory disparate treatment, hostile environment, infliction of emotional distress, and other acts made unlawful". Complainant maintains that "the issues that must be decided are whether there exist material facts in genuine dispute and issues of credibility that preclude the Judge from granting summary judgment." Complainant states a hearing is necessary to make that determination.
In response, the Agency requests that the Commission affirm the decision, arguing that Complainant failed to show any inadequacy or error that would necessitate a remand.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (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").
The Commission's regulations allow an AJ to issue a decision without a hearing when there is no genuine issue of material fact or credibility. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Disparate Treatment: Suspension, Reprisal, Terms and Conditions
Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . sex." 42 U.S.C. Section 2000e-16(a). To establish a claim of disparate treatment on the basis of race, sex or reprisal, a complainant must show the agency took an adverse employment action against the complainant because of the complainant's race, sex or reprisal or otherwise failed to make its personnel actions free of discrimination. This can be shown through either direct or indirect evidence. Where there is direct evidence of discrimination there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Liability is established where the trier of fact finds that there is direct evidence of discrimination. See Lusardi v. Department of the Army, EEOC Appeal No. 0120133395 (April 1, 2015). This action is based on circumstantial evidence.
Complainant averred that she felt belittled, but she failed to offer any proof of any managerial harassment or any adverse action taken against her or evidence that she was subjected to a different and harsher standard than the Agency imposed on other employees outside of her protected groups.
Hostile Work Environment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and /or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Johnson v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120113331 (July 1, 2014). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceived it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id at 23.
In this case, there is no evidence that the harassment was based on her protected classes.
Reasonable Accommodation
The Rehabilitation Act provides that the standards used to determine a violation "shall be the standards applied under title I of the Americans with Disabilities Act (42 U.S.C. 1211 et seq.) and the provisions of sections 501 through 504, and 510 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204)." The Rehabilitation Act and ADA prohibit disparate treatment on the basis of disability and require reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability unless doing so would cause an undue hardship.
The AJ assumed that Complainant was a qualified individual with a disability for purposes of his analysis. The AJ stated that it was undisputed that to accommodate her work limitations, the Agency permitted Complainant to move and redistribute mail as she saw fit in order to keep workloads within her lifting limitations and that the measures provided by the agency complied with the medically prescribed restrictions for her back, ankle and neck conditions.
We find that the AJ properly determined that there were no genuine issues of material fact or issues of credibility that would warrant a hearing in this matter. Looking at the evidence in the light most favorable to Complainant, there is no evidence that she suffered an adverse personnel action due to her national origin, sex, prior EEO activity or disability.
Therefore, we find that the AJ's decision was procedurally appropriate, based on the analysis herein and for the reasons stated herein.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
November 29, 2016
__________________
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 In its notice of acceptance, the Agency advised Complainant that the allegation that the settlement agreement has been breached should be pursued as a breach claim, rather than filing a new separate complaint.
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