0120150384
04-17-2017
Lara G.,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
Lara G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120150384
Agency No. 1F-927-003214
DECISION
On October 29, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 30, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency, from November 2013 to June 2014, subjected her to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Industry Processing and Distribution Center in California. Complainant's chain of command included the Supervisor, Distribution Operations (SDO), the Acting Manager, Distribution Operations (AMDO), and the Manager, Distribution Operations (MDO).
On April 23, 2014, Complainant filed an EEO complaint alleging that the Agency, from November 2013 to June 2014, subjected her to hostile work environment harassment on the bases of disability (rotator cuff syndrome of the right shoulder) and reprisal for prior protected EEO activity (prior EEO complaint resolved in July 2012; instant EEO complaint initiated in January 2014). As part of Complainant's claim, she alleged 12 incidents of harassment, including the following:2
1. On December 11, 2013, SDO questioned why she did not start her machine on time. She felt that SDO's actions were not justified because he had delayed bringing mail to her machine.
2. For December 30, 2013, SDO disapproved her requested sick leave. She felt that SDO's actions were not justified because she had provided medical documentation.
3. On January 21, 2014, SDO issued her a letter of warning for failing to cooperate in a January 7, 2014, investigative interview conducted by the Acting Supervisor, Distribution Operations (ASDO) (i.e., walking out of the interview after telling ASDO she wanted SDO to conduct the interview instead). She felt that SDO's actions were not justified because ASDO had agreed to her request to postpone the interview.
4. On February 17, 2014, SDO and AMDO told her that there was no work available within her medical restrictions and sent her home after she worked approximately two hours. She felt that SDO/AMDO's actions were not justified because her medical restrictions were the same as before.
5. On unspecified dates, SDO referred to her as "bitch," "complaining bitch," and "stupid bitch" to a coworker (CW).
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 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 final decision concluded that Complainant did not prove that the Agency subjected her to hostile work environment harassment as alleged.
Citing documentary evidence and management's testimonial evidence, the Agency found that Complainant did not show that the incidents complained of were based on her disability or prior protected EEO activity.
Regarding incident 1, the Agency cited SDO's testimony that mule drivers took the mail to the machines, his employees were expected to start the machines if there was mail on them, and his employees were supposed to notify him if there was mail that needed to be taken by the mule drivers to the machines.
Regarding incident 2, the Agency cited SDO's testimony that Complainant called in for four days of sick leave (December 24, 26-27, and 30),3 but was only paid for three days of sick leave because she did not provide the required medical documentation for absences over three days. In addition, the Agency cited the Employee and Labor Relations Manual's sick leave documentation requirements: (a) Section 513.361 - for periods of absence of three days or less, management may accept the employee's statement explaining the absence; (b) Section 513.362 - for absences in excess of three days, the employee is required to submit medical documentation or other acceptable evidence of incapacity for work or of need to care for a family member; and (c) Section 513.364 - medical documentation should provide an explanation of the nature of the employee's illness or injury sufficient to indicate to management that the employee was unable to perform her normal duties for the period of absence. Although Complainant submitted medical documentation showing that her children had medical appointments on December 30, the Agency found that the medical documentation was insufficient.
Regarding incident 3, the Agency cited SDO's testimony that ASDO was in the process of conducting an investigative interview with Complainant, but she did not cooperate and walked out.
Regarding incident 4, the Agency cited SDO/MDO's testimony that Complainant was on leave the week before, she returned to work that day with new medical documentation, SDO/AMDO sent her home pending clarification about her medical restrictions because they did not want her to work beyond her medical restrictions, and MDO determined after further review that Complainant's medical restrictions were the same as before. In addition, the Agency cited a May 9, 2014, grievance settlement showing that management agreed to pay Complainant for the hours she missed that day.
Regarding incident 5, the Agency noted that the record contained CW's unsworn statement that, for approximately five years, SDO referred to Complainant and other female employees as "bitches" and to Complainant specifically as "bitch," "complaining bitch," and "stupid bitch." The Agency, however, credited SDO's sworn testimony that he never referred to Complainant as a "bitch."
CONTENTIONS ON APPEAL4
On appeal, Complainant submitted documentary evidence that was already part of the record. Among other things, Complainant submitted grievance documents related to incidents 1 - 4 and CW's unsworn statement related to incident 5.
STANDARD OF REVIEW
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 EEO MD-110, Ch. 9, � VI.A (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").
ANALYSIS AND FINDINGS
To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or 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. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review of the record, we find that Complainant did not establish a claim of harassment on the bases of disability or reprisal. Specifically, the evidence in the record is insufficient to support a finding that the Agency's actions were based on Complainant's disability or prior protected EEO activity. Regarding incidents 1 - 4, the record reflects that the Agency provided nondiscriminatory explanations for management's conduct, as discussed in the Agency's final decision. Regarding incident 5, the record contains conflicting evidence from SDO and CW about whether SDO made derogatory comments about Complainant; SDO provided sworn testimony that he never called Complainant a "bitch" while CW provided an unsworn statement that he heard SDO call Complainant and other female employees "bitches." We note that, in his unsworn statement, CW also stated that SDO "would speak badly of many employees from all operations" and "[a]nything would trigger the name calling." Even assuming, arguendo, that SDO called Complainant a "bitch," we are unpersuaded that his doing so was motivated by her disability or prior protected EEO activity.
We note that Complainant's version of events often differs from the Agency's version of events. Had Complainant requested a hearing before an AJ, the AJ could have made credibility determinations based on witness testimony. See generally EEO MD-110, Ch. 7 (explaining the hearing stage and the role of the AJ). As Complainant did not request a hearing, we do not have the benefit of an AJ's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has shown that the Agency's conduct was based on her disability or prior protected EEO activity.
CONCLUSION
Complainant did not establish that the Agency, from November 2013 to June 2014, subjected her to hostile work environment harassment on the bases of disability and reprisal for prior protected EEO activity. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's final decision.
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 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 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
__4/17/17________________
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.
2 For purposes of clarity, we have rephrased and renumbered the incidents.
3 December 25 was a federal holiday and December 28-29 were Complainant's nonscheduled days.
4 On appeal, Complainant also requests to talk to an arbitrator. We emphasize that federal EEO complaint processing procedures do not provide for a referral to an arbitrator at this juncture. See generally Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 (Aug. 5, 2015) (explaining the appeals process).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150384
6
0120150384