0120173006
07-26-2018
Mana H.,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
Mana H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120173006
Hearing No. 480-2014-00756X
Agency No. 4F-926-0053-14
DECISION
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 September 7, 2017 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at a Laguna Hills, California facility of the Agency. On March 1, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (Caucasian) when:
1. on November 14, 2013, a coworker physically assaulted Complainant and management failed to act appropriately,
2. on November 23, 2013, December 14, 2013, and other unspecified dates, coworkers subjected Complainant to a hostile work environment and management failed to take appropriate action, and
3. on December 6, 2013, management issued Complainant a 7-Day Suspension for Unacceptable Conduct.
The Agency accepted Complainant's claims for investigation.
Investigation
Complainant's Statement
During the EEO investigation, Complainant stated that she was speaking with a coworker when another coworker (C1) (African American) walked up to her and violently struck her on the head. Complainant stated that she went in the restroom to put water on her face, looked for a supervisor to report the incident to but was unable to find one, and then clocked out and went home. Complainant stated that she reported the assault the next day to the Customer Service Manager (S1) and, at the end of their discussion, S1 referred her to the Employee Assistance Program for personal counseling. Complainant stated, on November 23, 2013, C1 and another coworker were in the parking lot and were laughing at and talking about her, causing her emotional distress. Complainant stated that she went inside to ask the Customer Service Supervisor (S2) about her assault claim, to which S2 stated she would have to ask S1. Complainant stated that she told S2 "the Blacks run this place." Complainant added that, on December 14, 2013, two other coworkers were looking at her and laughing. Complainant stated that S2 issued her a suspension related to her comments, but they were made "off the clock," "during a personal conversation," and when she was "emotionally distressed by the assault." Complainant stated that management conducted an in-depth investigation of her comment as a racial slur but did not investigate her assault claim. Complainant stated that she filed a claim based on the assault with the Office of Workers' Compensation Programs, but it was denied.
Agency's Statement
As to claim (1), S1 (Caucasian) stated she investigated Complainant's claim immediately after Complainant informed her the day after it occurred. S1 stated that, on November 14, C1 walked past Complainant on the way to the restroom and tapped Complainant on the back of the head. S1 stated that Complainant and C1 differ about the degree of the contact, but C1 said she did so jokingly. S1 stated that Complainant did not report the matter to a supervisor the night it occurred. S1 stated that the coworker who witnessed the incident (C2) did not want to participate in the investigation but was informed he had to do so. S1 stated that C2 reported that C1 pat Complainant on the back of the head but acknowledged the contact made Complainant's head fly forward. S1 stated that the Agency issued C1 a 7-day suspension for inappropriate behavior. S1 noted that she and Complainant are in the same protected race class.
For claim (2), S1 stated that Complainant, management, a union representative and the involved coworkers were supposed to talk, but C1 and Complainant were out of the office at different times. S1 stated that she told C1 and the other accused coworker "the incident was over and they should let it go." S1 stated that she is not aware of a December 14, 2013 incident.
Regarding claim (3), S1 stated that employees reported that Complainant used vulgar language and racial slurs regarding C1 and other Black employees. S1 stated that Complainant acknowledged calling C1 "a black bitch." S1 stated that management issued Complainant a suspension because she violated the Agency's zero tolerance policy on workplace violence, which includes making offensive or derogatory comments.
A Customer Services Supervisor, S2, (Asian) stated that S1 investigated Complainant's allegation and issued discipline to C1. S2 stated that Complainant did not report the actions alleged in claim (2) to her so she is unaware of the matter. Regarding claim (3), S2 stated that Complainant told her that management was not doing anything about her allegations and that the facility "was being run by the Blacks." S2 stated that another coworker told her that Complainant used vulgar, derogatory, and racial language to him so she reported the incidents to S1 who investigated the matter. S2 stated that the Agency issued Complainant a suspension because she violated the workplace policy on harassment.
Investigative Record
The record contains, in pertinent part, the following documents.
* Notes, dated November 27, 2013, from an investigative interview with S1, Complainant, and a union representative about use of derogatory language. The notes state that Complainant acknowledged calling C1 "a black bitch."
* Suspension of Seven Days or less, dated November 29, 2013, to C1, citing "unacceptable behavior."
* A Seven Day Suspension, dated December 6, 2013, charging Complainant with "Failure to Follow Instructions/Unacceptable Behavior."
Post-Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The assigned AJ issued a decision, without a hearing, finding Complainant failed to establish disparate treatment or hostile work environment harassment based on discriminatory motives. Subsequently, on September 1, 2017, the Agency issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed.
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").
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Even assuming arguendo that Complainant established a prima facie case of discrimination, the record shows that the Agency articulated legitimate, nondiscriminatory reasons for the matters at issue. S1 stated that she investigated Complainant's claim of physical assault and issued the accused hitter a seven-day suspension. Further, S1 stated that she discussed alleged harassment by coworkers with Complainant and with the accused coworkers separately and instructed them to let the matter go. Finally, S1 stated that Complainant acknowledged making a race-based comment, which violated the Agency's zero tolerance policy, so the Agency issued her a seven-day suspension as well.
We find that Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to conceal discriminatory animus toward Complainant's protected classes. Further, to the extent Complainant alleged that the actions discussed in (1) through (3) also created a hostile work environment, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that those actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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
July 26, 2018
__________________
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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