Mana H.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 16, 2020

2019002506 (E.E.O.C. Sep. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mana H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019002506 Agency No. 4G-320-0167-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 8, 2019, 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 The issues are (1) Complainant’s complaint should be remanded for a hearing; and (2) whether Complainant established that the Agency subjected her to discrimination and a hostile work environment based on her disability or sex, or in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Columbus Post Office in Columbus, Georgia. On July 19, 2017, Complainant’s first- line supervisor (S1) (male) overheard Complainant loudly exchange words with a coworker (CW) 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. 2019002506 2 and immediately conducted an investigative interview. S1 subsequently issued Complainant a 7- day suspension on August 16, 2017, for Improper Conduct. S1 noted that Complainant had been louder than CW, and at the conclusion of the investigative interview, Complainant stated that if CW “was big enough to give a lick, she could take a lick.” Report of Investigation (ROI) at 141,147,531-2. Complainant stated that CW was treated more favorably when her (CW’s) suspension was removed and replaced with a Letter of Warning. ROI at 180. Complainant stated that on July 26, 2017, she learned that an unidentified Agency official contacted her doctor’s office, in-person and via telephone, to inquire about her medical status. ROI at 142. Complainant stated that on August 16, 2017, S1 followed her on her route, and on August 17, 2017, he conducted a pre-disciplinary interview (PDI) with Complainant regarding her driving practices. S1 then placed Complainant on Emergency Placement until September 26, 2017. ROI at 150-2, 549-51. Complainant stated that on October 3, 2017, she was required to attend a Defensive Driving course. ROI at 153. Complainant stated that on October 4, 2017, S1 subjected her to an Investigative Interview regarding an allegation that Complainant was absent without official leave (AWOL) on September 23 and 25, 2017. Complainant stated that she did not learn that she was required to return to work until around 5:00 p.m. on September 25, 2017. ROI at 155-6. Complainant stated that in October 2017, S1 made various comments about his intent to fire her. ROI at 157. Complainant stated that on October 19, 2017, S1 called her a “dog.” ROI at 159. Complainant stated that on October 20 and 23, 2017, S1 followed her, took photographs, and made comments about her under his breath. ROI at 160-2. Complainant stated that on October 21, 2017, S1 refused to allow her to go to lunch. ROI at 163. Complainant stated that on October 24, 2017, she was issued a PDI for bringing back mail. Complainant also stated that she lost her timecard, which was found by a coworker who gave it to S1. Complainant stated that S1 chose not to return her timecard to her for approximately one week. ROI at 164-5. Complainant stated that on October 26, 2017, she was subjected to a PDI for failure to punch in and out, which she was unable to do because S1 had her timecard. Complainant was not disciplined after the PDI. ROI at 166-7. Complainant stated that on October 27, 2017, S1 did not allow her to eat lunch, and as a result, Complainant became sick and vomited on the floor. Complainant stated that S1 instructed her to clean the mess, and another supervisor (S2) (female) followed her to the restroom to check on her. Complainant stated that she went to the Emergency Room and was deemed AWOL. ROI at 168- 9. Complainant stated that S1 placed her on Emergency Placement on October 28, 2017, and he informed her that she needed to provide a doctor’s note to return to work. ROI at 170. Complainant stated that S1 asked her, “What is your disability?” and “Why are you sick?” ROI at 185. Complainant stated that on October 30, 2017, S1 deemed her AWOL, even though she returned to work. ROI at 171-2. Complainant stated that S1 followed her while driving a postal vehicle on October 31, and November 8, 2017. ROI at 173. 2019002506 3 Complainant stated that on November 4, 2017, S1 stated that she was a “joke”; on November 6, 2017, S1 cursed at her; and on November 7, 2017, S1 said that Complainant was “so ignorant.” ROI at 175. Complainant stated that on December 18, 2017, January 16, 22-24, 2018, February 5-10,16-17, 2018, March 24, 2018, April 6-7, 2018, and other dates, she was required to provide documentation for her absences. Complainant stated that she was threatened with leave without pay (LWOP) or AWOL if she did not provide the documentation. ROI at 194. Complainant stated that on January 30, 2018, the Officer in Charge (OIC) (male) asked her, “What are your medical restrictions?” and “Why do you have those medical restrictions?” within earshot of her coworkers. ROI at 196. Complainant stated that on or around February 4, 2018, S1 did not take enough mail from her route to accommodate her 8-hour medical restriction. ROI at 176. Complainant stated that on February 13,14,21, and April 4,16, and 24, 2018, a City Carrier (CC) observed her while she was working in the office and in the street. ROI at 198. Complainant stated that on February 21, 2018, OIC and S1 spoke to her at least six times regarding issues and threatened her with discipline. ROI at 200. Complainant stated that they instructed her to leave the building, and she was placed on an off-duty status. ROI at 207. Complainant stated that she was subjected to an Investigative Interview by S2 on February 21, 2018, March 22, 2018, and May 19, 2018. ROI at 205-6, 675. On March 1, 2018, S1 sent Complainant a letter instructing her to submit medical documentation to support her absence from work since February 21, 2018. S1 stated that if Complainant did not provide the documentation by March 9, 2018, she would be charged with LWOP or AWOL. ROI at 682. Complainant stated that on March 24, 2018, S2 charged her with AWOL. ROI at 212. Complainant stated that on May 18, 2018, OIC followed her to where she was eating lunch and stated that she had extended her lunch break. ROI at 214. EEO Complaint On December 6, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of sex (female) and disability (physical), and in reprisal for prior protected EEO activity (Agency case number 4G-350-0066- 16) when: 1. on or about July 19, 2017, she was given an Investigative Interview; 2. on or about July 26, 2017, she discovered that management officials contacted her doctor’s office to inquire about her medical status; 3. on or about August 16, 2017, she was issued a 7-day suspension; 2019002506 4 4. on August 16, 2017, S1 followed Complainant on her route, subjected her to a PDI regarding her driving practices the next day, and subsequently placed her on Emergency Placement until September 26, 2017; 5. on October 3, 2017, she was required to attend a defensive driving class; 6. on October 4, 2017, she was subjected to an Investigative Interview and charged AWOL for September 23, and 25, 2017; 7. in October 2017, S1 made various comments of his intent to fire Complainant; 8. on October 19, 2017, she was subjected to a PDI, during which S1 called Complainant a “dog”; 9. on October 20 and 23, 2017, S1 followed Complainant, took photographs, and made comments about her under his breath; 10. on October 21, 2017, management refused to allow Complainant to go to lunch, despite reports of her medical condition and disability; 11. on October 24, 2017, she was given a PDI for bringing back mail from her route and her timecard was taken away from her for several days; 12. on October 26, 2017, she was given a PDI and management questioned the specifics of her disability; 13. on October 27, 2017, she was not allowed to take lunch, and as a result, became sick and vomited. Management then instructed Complainant to clean up the mess and followed her to the restroom, questioning her to the point she had to go to the emergency room. Complainant was then deemed AWOL, despite returning to work after her hospital visit; 14. on October 28, 2017, she was placed on Emergency Placement and informed that she would need to provide a doctor’s note to return to work; 15. on October 30, 2017, she was deemed AWOL; 16. on October 31, and November 8, 2017, she was followed while operating a Postal vehicle; 17. on various dates in November 2017, S1 made insulting remarks, called Complainant names, and cursed at her; 18. on a day-to-day basis, management did not take enough mail from her assigned route to accommodate her 8-hour medical restriction; 2019002506 5 19. on December 18, 2017, January 16, 22-24, 2018, February 5-10,16-17, 2018, March 24, 2018, April 6-7, 2018, and other dates to be provided, she was required to provide documentation for her absences; 20. on January 20, 2018, her medical information was discussed in the presence of her coworkers; 21. on or about February 13, 2018, and other dates to be provided, she was observed while working in the office and on the street; 22. on February 21, 2018, management spoke to Complainant at least six times regarding work issues, and threatened her with discipline; 23. on February 21, 2018, March 22, 2018, and in late May 2018, she was subjected to investigative interviews; 24. on February 21, 2018, she was instructed to leave the building and placed on an off-duty status; 25. on March 1, 2018, she received a letter notifying her that documentation was needed to for her absences, which started on February 21, 2018; 26. on March 24, 2018, she was charged AWOL; and 27. on May 18, 2018, OIC “reprimanded” Complainant while on her route. Complainant requested to amend her complaint, and on June 26, 2018, the Agency accepted the above claims. However, the Agency procedurally dismissed Complainant’s claim that she was discriminated against when on February 21, 2018, her request for a union steward was denied, for failure to state a claim, as a collateral attack concerning the collective bargaining agreement. ROI at 54-60. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. When the Agency did not receive a request for a hearing from Complainant within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant was a qualified individual with a disability, but that she did not show a failure to accommodate for claims 10, 13, and 18. The Agency noted that S1 stated that Complainant was given daily help, and that she did not work more than 8 hours. S1 also stated that he did not refuse to allow Complainant to go to lunch. The Agency determined that Complainant did not provide any evidence showing that she was denied lunch, or that she was required to work more than 8 hours. 2019002506 6 The Agency noted that incidents 3, 4, 6, 15, and 26 stated independent claims outside of a harassment framework but found that Complainant only identified comparators for claims 3, 4 and 15. The Agency determined that because Complainant did not identify comparators for incidents 6 and 26, she did not establish a prima facie case of discrimination for these incidents. The Agency then found that Complainant did not establish a prima facie case of discrimination because she did not show that her named comparators were treated more favorably, nor present any evidence from which to draw an inference of discrimination, for claims 3, 4, and 15. The Agency further determined that management officials articulated legitimate, nondiscriminatory reasons for claims 3, 4, and 15, and that Complainant did not show that the reasons were pretexts for discrimination. Regarding Complainant’s harassment claim, the Agency found that the record was devoid of evidence that management officials acted because of her protected classes. The Agency also found that the incidents were not severe or pervasive, but that they were common daily interactions between supervisors and their employees. For incidents 2 and 20, the Agency determined that Complainant only made bare assertions, and did not establish that any improper medical inquiry occurred. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that the Agency’s final decision should be reversed as “arbitrary and capricious.” Complainant states that the Agency abused its discretion by accepting bare denials at face value, effectively foreclosing credibility determinations of the management officials. Complainant asserts that she established a prima facie case of discrimination based on disability and sex, and in reprisal for prior EEO activity. Complainant also argues that the Agency erred when it only considered incidents 10, 13, and 18 as adverse actions. Complainant asserts that she was subjected to adverse actions in the handling of her disciplinary actions and the observance of her medical restrictions. Complainant states that the totality of the circumstances raise an inference of discrimination. For example, Complainant argues that management officials “focused much of their attention” on her medical restrictions and the necessity of her work restrictions, and this “fixation” demonstrates a motivating factor in the Agency’s adverse actions. Complainant also argues that the Agency failed to engage in the interactive process to accommodate her medical restrictions. 2019002506 7 Regarding the named comparators, Complainant asserts that they were treated more favorably because they were not subjected to the same treatment. In addition, Complainant states that the Commission interprets comparators liberally, and that “the analysis tracks conduct, not position title.” Complainant also argues that even when there is no appropriate comparator, “an inference of discrimination is demonstrated ‘by showing such weakness, implausibilities, inconsistencies, incoherencies, and contradictions in the [Agency’s] proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence,’” citing Dalesandro v. United States Postal Service, EEOC Appeal No. 01A50250 (January 30, 2006). Complainant argues that the Agency “arbitrarily ignored documentary evidence,” and failed to address the adverse determinations from Complainant’s grievances that showed that disciplinary actions were unsubstantiated. Complainant states that OIC’s statement that Complainant “should never have been brought on as a carrier with such restrictions” demonstrates discriminatory animus. Complainant also argues that she established a prima facie case of reprisal. Complainant states that it is undisputed that she participated in the EEO process (Agency case number 4G-350-0066-16), and that S1 stated that he was aware of her EEO activity. Complainant asserts that there is a nexus between her prior EEO activity and the adverse treatment in the link between S1 and OIC in “their crusade” against Complainant. Complainant states that the Agency did not articulate legitimate nondiscriminatory reasons for its actions. For example, for incident 15, S1 stated that he did not recall why Complainant was placed on AWOL. Complainant argues that the Agency improperly relies upon “credible” statements from S1 and OIC, which were “rote denials” of the allegations. Complainant argues that she was subjected to severe and pervasive harassment, which the Agency failed to remediate. Complainant states that she was subjected to nearly 30 incidents of unwelcome conduct by Agency officials, and that they took time away from Complainant’s routine duties or time in a pay status. Complainant also states that the Agency is liable for the harassment because management officials created the incidents and failed to take sufficient remedial action. With Complainant’s appeal brief, she provided some new evidence, such as an additional affidavit from Complainant and an unsworn statement from a union official. In addition, Complainant states that she timely sent her hearing request.2 However, due to “an administrative error,” the Agency’s copy was inadvertently addressed to the Commission “in a duplicate format.” Complainant acknowledges that the mailing was never delivered to the Agency. Complainant requests that the Commission reverse the Agency’s final decision or remand the complaint for a hearing. 2 On July 31, 2019, the Administrative Judge dismissed Complainant’s hearing request because Complainant did not send a copy of her hearing request to the Agency. 2019002506 8 Agency’s Contentions The Agency argues that the final decision properly determined that Complainant did not carry her legal burden to establish, by a preponderance of the evidence, that she was subjected to discrimination or harassment, as a result of discriminatory animus. The Agency also argues that Complainant’s new evidence on appeal should be stricken. Specifically, the Agency notes that Complainant’s new affidavit contains 90 new statements of fact, and that the information was fully available to Complainant throughout the EEO process. Further, the Agency asserts that Complainant did not state how her new declaration, and other documents, were unavailable to her prior to, or during, the investigation. The Agency states that management officials articulated legitimate, nondiscriminatory reasons for all the incidents and that Complainant did not provide evidence that the reasons were pretext. The Agency argues that Complainant did not demonstrate that any of the conduct was based on discriminatory animus, and that they did not rise to the level of actionable harassment because they were not sufficiently severe or pervasive. The Agency requests that the Agency affirm its final decision. ANALYSIS AND FINDINGS 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD 110), at Chap. 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”). Request for Hearing As an initial matter, we address Complainant’s request that the matter be remanded for a hearing. In her appeal, Complainant stated that an “administrative error” resulted in the mailing of the Agency’s copy of her hearing request as a duplicate to the Commission. EEOC regulations state that a “complainant shall send a copy of the request for a hearing to the agency EEO office.” 29 C.F.R. § 1614.108(h). In addition, failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Gallo v. Department of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). 2019002506 9 In this case, Complainant admitted to not sending a copy of her hearing request to the Agency. Accordingly, we find that Complainant did not properly request a hearing, and we decline to remand the complaint for a hearing. New Evidence on Appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. Claims The Agency procedurally dismissed Complainant’s claim that she was discriminated against when on February 21, 2018, her request for a union steward was denied, for failure to state a claim as a collateral attack regarding the collective bargaining agreement. On appeal, Complainant states in a footnote that she would address this allegation, but Complainant did not provide any arguments on this dismissed claim. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her claim that she was not provided with a union representative is within the negotiated grievance process. Accordingly, we AFFIRM the Agency’s procedural dismissal of Complainant’s claim regarding a denial of her request for a union steward. We agree with Complainant that the Agency erred when it did not consider additional incidents as discrete claims of discrimination. EEOC regulation requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). In this case, Complainant contacted an EEO Counselor on August 21, 2017, and we find that all of the incidents in this complaint would be considered timely. We find that while the Agency considered incidents 2, 3, 4, 6, 10, 13, 15, 18, 20, and 26, to be discrete claims, it should have also analyzed additional incidents as discrete claims, as discussed further below. 2019002506 10 Failure to Provide Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the record shows that the Agency accommodated Complainant’s 8-hour medical restriction (claim 18). S1 stated that they provided assistance to Complainant when requested, and S2 stated that mail was taken from Complainant every day. ROI at 250, 403. Complainant argues on appeal that she was subjected to several PDIs for returning with mail that she could not complete within her 8-hour restriction. We note, however, that Complainant has not shown that the Agency failed to reduce her mail on those days. For claims 10 and 13, S1 denied refusing Complainant a lunch break, and stated that employees are required to take a lunch break within 6 hours; most employees choose when to eat. In addition, the record shows that Complainant was not recorded AWOL, but 6.25 hours of sick leave for October 27, 2017. ROI at 272-3, 277, 559. While Complainant argues on appeal that the Agency failed to engage in the interactive process, we find that the evidence does not show that S1 denied Complainant’s request. As such, we find that Complainant has not established that the Agency failed to provide a reasonable accommodation. Disability-related Inquiry The Rehabilitation Act places certain limitations on an employer’s ability to make disability- related inquires or require medical examinations of employees only if it is job related and consistent with business necessity. 29 C.F.R. §§ 1630.13(b),14(c). Generally, a disability related inquiry or medical examination of an employee may be “job related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat clue to a medical condition.” Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA, EEOC Notice No. 915.002, at 15-16 (July 27, 2000). It is the burden of the employer to show that its disability related inquiries and requests for examination are job related and consistent with business necessity. Id. at 15-23. 2019002506 11 Complainant alleged that the Agency discriminated against her based on her disability when an Agency official contacted her doctor’s office (claim 2); S1 questioned her about her medical restrictions (claim 12); OIC discussed her medical information in front of her coworkers (claim 20); and when she was required to submit medical documentation to support her absences (claims 19 and 25). Regarding claim 2, we find that Complainant did not identify the individual who allegedly contacted her doctor’s office, and t did not offer proof that anyone from the Agency made this disability-related inquiry. For claims 12 and 20, S1 denied questioning Complainant about her disability, and OIC stated that he did not recall asking Complainant about her medical restrictions, but that he would not do that to an employee. ROI at 276,453. On appeal, Complainant argues that S1 and OIC are not credible. We note that Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). As such, we find that Complainant has not shown that S1 or OIC were not credible. For claims 19 and 25, S1 stated that they have the right to request documentation for any absences of three days or more. ROI at 301. OIC stated that employees are required to submit documentation to support “long-term or many absences,” and that they need to be regular in attendance, in accordance with the Employee and Labor Relations Manual. ROI at 451,462, 754. We find that the Agency provided a business-related reason for requesting medical documentation for Complainant’s absences. Accordingly, we find that Complainant did not establish that the Agency made any improper disability-related inquiries. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. 2019002506 12 At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). We find that Complainant did not establish a prima facie case of discrimination based on sex or disability for claims 3, 4, 6, 14, 15, 24, and 26. Complainant may establish a prima facie case of discrimination by providing evidence that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) either that similarly situated individuals outside her protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted). We find that Complainant is member of a protected class based on her sex and disability, and that she suffered adverse employment actions. However, Complainant did not show that similarly- situated individuals outside of her protected classes were treated differently. Regarding her comparators, Complainant argues that the Commission interprets comparators liberally, and that “the analysis tracks conduct, not position title.” The Commission has found that, among other things, to be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). In this case, we find that Complainant only makes general arguments that her comparators were not subjected to the same treatment, such as not being deemed AWOL. However, we find that Complainant has not provided specific information showing that her named comparators engaged in similar conduct so that it would be expected that they would be treated in the same manner as Complainant. For example, while Complainant asserts that CW was treated more favorably when her suspension was mitigated to a Letter of Warning, we find that Complainant did not dispute S1’s statement that Complainant was the “louder of the two.” As such, we find that Complainant has not shown that similarly-situated individuals were treated differently. Complainant also argues that even when there is no appropriate comparator, “an inference of discrimination is demonstrated ‘by showing such weakness, implausibilities, inconsistencies, incoherencies, and contradictions in the [Agency’s] proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence,’” citing Dalesandro v. United States Postal Service, EEOC Appeal No. 01A50250 (January 30, 2006). However, we find that Complainant errs in her argument because weakness, implausibilities, inconsistencies, incoherencies, and contradictions in the proffered legitimate reasons can establish pretext for discrimination, not an inference of discrimination. In addition, Complainant argues that the management officials were aware of her disability status and took disciplinary action against Complainant that was motivated by discrimination. 2019002506 13 However, we find that management officials’ awareness of Complainant’s disability status is not evidence that management officials were motivated to discipline her due to her disability, and Complainant did not provide any evidence to show that their actions were due to Complainant’s disability. As such, we find that Complainant has not established a prima facie case of discrimination based on sex or disability for claims 3, 4, 6, 14, 15, 24, and 26. We also find that Complainant did not establish a prima facie case of reprisal for any of her claims. A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. See Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). We find that Complainant engaged in prior EEO activity and S1 stated that he was aware of her EEO activity. However, we find that Complainant has not shown a nexus between her EEO activity and any adverse action. On appeal, Complainant argues that a nexus between her prior EEO activity and the adverse treatment is shown in the link between S1 and OIC in “their crusade” against Complainant, but she did not cite to any evidence to prove a nexus between her prior EEO activity and the Agency’s actions. We note that while Complainant stated that S1 was named as a responsible management official in her prior EEO case, the record shows that he was not named. ROI at 523. In addition, we note that Complainant did not show that the other management officials were aware of her prior EEO activity. Accordingly, we find that Complainant has not established a prima facie case of reprisal. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to 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 statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998). As an initial matter, we found that Complainant did not establish a case of discrimination on any of her alleged bases for incidents 2, 3, 4, 6, 10, 12, 13, 14, 15, 18, 19, 20, 24, 25, and 26. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). In addition, we find that incidents 8 and 27 did not occur as alleged. The record contains an affidavit from Complainant’s union representative who confirmed that S1 did not call Complainant a “dog.” 2019002506 14 Regarding incident 27, OIC stated that he only asked Complainant to move her vehicle from a fire lane. ROI at 463. As such, we will not consider these incidents in Complainant’s harassment allegation. We find that Complainant belongs to statutorily protected classes based on her disability, sex, and prior EEO activity, and that she was subjected to unwelcome verbal conduct. However, even assuming that that the remaining incidents, 1, 5, 7, 9, 11, 16, 17, 21, 22, and 23, occurred as alleged, we find that Complainant has not shown any evidence that they occurred due to her protected classes. In addition, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). For example, S1 stated that Complainant was required to attend a defensive driving course as a refresher. ROI at 263. In addition, management officials stated that supervision is conducted on all employees. ROI at 270,470. Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). We find that Complainant did not show that these incidents were abusive or offensive, and taken to harass Complainant. We further note that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that S1 made comments that Complainant was a “joke” or “ignorant,” or cursed at Complainant, we find that this was not so objectively offensive as to alter the conditions of Complainant’s employment. Accordingly, we find that Complainant did not establish that she was subjected to a hostile work environment based on sex or disability, or in reprisal for protected EEO activity. 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 finding that Complainant did not establish that the Agency subjected her to discrimination or a hostile work environment based on her sex or disability, or in reprisal for prior protected EEO activity. 2019002506 15 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. 2019002506 16 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 September 16, 2020 Date