Mindy O.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionOct 19, 20180120170094 (E.E.O.C. Oct. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120170094 Hearing No. 410-2015-00327X Agency No. 4K-300-0147-15 DECISION On September 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate, R-05, at the Agency’s Crosstown Annex in Roswell, Georgia. During the relevant period, Complainant’s first-line supervisor was the Supervisor of Customer Service (S1) and her second-line supervisor was the Manager of Customer Service (S2). On December 31, 2014, Complainant discovered that someone had written “bitch” on a parcel scheduled for delivery on her route. 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. 0120170094 2 Complainant averred that S1 was the party responsible for writing on the parcel, contending that a co-worker (CW-1) recognized the handwriting as S1’s handwriting. Complainant reported that she gave the package to another supervisor (S3) and that S3 opined that S1 had written the statement. Complainant further alleged that S3 reported the incident to the Postmaster, but management officials did not resolve the issue. On January 2, 2015, S1 issued Complainant a Letter of Warning (LOW), which explained that Complainant failed to follow instructions, discharge her duties, and record her time on a PS Form 4240, Rural Carrier Trip Report. The LOW indicated that on December 29, 2014, Complainant failed to call her supervisor before completing her street duties as instructed. In addition, the LOW noted that Complainant delayed mail when she brought an item back to the office undelivered and failed to complete her timesheet. Prior to issuance of the LOW, on December 31, 2014, an investigative interview was held with Complainant and her Union Steward present. On January 11, 2015, Complainant did not report to work and, on the following day, S1 marked Complainant as absent without leave (AWOL) for the missed day of work. Complainant noted that she did not attend work because the Sunday Team Lead sent Complainant a text message stating that all routes were covered for the day. Complainant requested a copy of the PS Form 3971, Request for or Notification of Absence, but S1 stated that the form had been rescinded. On February 12, 2015, Complainant was placed on emergency placement in off-duty status through February 14, 2015, for alleged falsification of documents during the rural mail count. On March 30, 2015, S1 issued Complainant a Notice of Removal with an effective date of April 10, 2015. Pursuant to the notice, Complainant was removed for improper conduct when she allegedly presented collection mail to the rural mail count official that included mail from another carrier’s route in February 2015. The Agency determined that Complainant had attempted to inflate her rural mail count figures, and that her explanation was unacceptable. On March 30, 2015, Complainant was removed from her “hold down” on Route #12, and replaced by another carrier. Complainant averred that the move resulted in her losing hours. Complainant added that the replacement carrier had less seniority and knowledge of the route than Complainant. On May 16, 2015, Complainant and management entered into a settlement agreement that rescinded the March 30, 2015 Notice of Removal. On May 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity when: 1. On December 31, 2014, Complainant discovered someone had written “bitch” on a parcel scheduled for delivery on Complainant’s route; 2. On January 5, 2015, Complainant was issued a LOW for failure to follow instructions, failure to discharge her duties, and failure to record 4240 times; 0120170094 3 3. On January 11, 2015, Complainant was charged with being AWOL; 4. On February 12, 2015, Complainant was placed on emergency placement in an off- duty status; 5. On March 30, 2015, Complainant was issued a notice of removal for improper conduct; and 6. Since March 30, 2015, Complainant has not been permitted to work on Route #12.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its FAD, the Agency reasoned that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that management articulated legitimate, nondiscriminatory explanations for its actions. As to someone writing “bitch” on a parcel on Complainant’s delivery route, the Agency noted that S1 denied knowing anything about the package or writing on the package. S3 stated that she reported the incident to the Postmaster and denied telling Complainant that S1 wrote on the package. The Postmaster stated that he interviewed S1 and believed that she did not write on the package. Regarding the LOW, S1 explained that the LOW was issued because Complainant fraudulently completed her timesheet and stated that she had forgotten when provided the chance to explain her actions during an investigative interview. S3 acknowledged that she informed Complainant that she would agree to remove the discipline in 60 or 90 days if S1 was no longer present at the office, but denied telling Complainant that S1 would be moved to another office. As for Complainant’s AWOL status on January 11, 2015, S1 testified that Complainant was a no call/no show on the date in question. However, the Team Lead acknowledged that she excused Complainant because there were enough carriers present. With respect to Complainant’s emergency placement in off-duty status, S1 noted that Complainant was removed from the schedule during an investigation and returned to work after 1.5 days. 2 Complainant raised an additional claim regarding a letter of indebtedness which was dismissed for failure to state a claim because it amounted to a collateral attack on another forum’s proceedings. Complainant did not challenge the dismissal on appeal; therefore, the Commission will not address it further herein. 0120170094 4 S1 reported that integrity was an issue because of an inflated mail count and management officials reported that Complainant was taken off the clock after a review of pictures of the mail in question. Regarding Complainant’s Notice of Removal, management indicated that the decision to remove Complainant was the result of a meeting with Labor Relations. Complainant’s abnormal mail count triggered the investigation and the large number of mail pieces from another route was considered unacceptable and fraudulent. Nevertheless, S1 reported that Complainant was out of work for seven days and brought back to work on April 11, 2015. Complainant’s removal was rescinded and she was reinstated. In terms of Complainant’s removal from Route #12, S2 reported that Complainant’s Union Steward indicated that Complainant was not entitled to hold down the route because the route was not on her matrix. S2 added that the substitute of record was moved to the route, but a different carrier was placed on the route following clarification of the correct carrier for the route. The Agency concluded that the explanations for each claim were nondiscriminatory and that Complainant could not prove that the reasons were pretextual. Further, the Agency found that Complainant presented no evidence of a nexus between the Agency’s actions and Complainant’s prior protected activity. Thus, the Agency concluded that Complainant failed to prove that she was subjected to reprisal as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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”). Disparate Treatment In the absence of direct evidence, a claim of discrimination is examined under the three-part analysis originally enunciated in McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973). For petitioner 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. Id. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 0120170094 5 Once the agency has met its burden, the petitioner bears the ultimate responsibility to persuade the fact finder 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). Although the initial inquiry in a discrimination case usually focuses on whether the complainant has established a prima facie case, following this order of analysis is unnecessary when the agency has articulated a legitimate, nondiscriminatory reason for its action. See Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from whether the complainant has established a prima facie case to whether she has demonstrated by a preponderance of the evidence that the agency’s reasons for its actions merely were a pretext for discrimination. Id.; see also U.S. Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 714-171 (1983). In the instant case, the Commission finds that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding incident (1), S1 denying that she wrote on Complainant’s package or made disparaging comments about Complainant. ROI, at 170. Complainant presented no corroborating evidence that S1 wrote on the package. Nonetheless, by Complainant’s own admission, management officials informed her that they would investigate the matter. Specifically, Complainant acknowledged that once she discovered the parcel, she alerted another supervisor who then informed the Postmaster. Id. at 90. The Postmaster confirmed that he investigated the matter, but could not determine that S1 wrote on the package. Id. at 227. With respect to the January 2015 LOW alleged in claim (2), Complainant reported that she did not call her supervisor as instructed because it was not an everyday function of the job and Complainant had no way to call. ROI, at 256. Complainant stated that she did not recall why she did not sign the 4240. Id. at 257. Complainant alleges that other carriers failed to sign out, but did not receive disciplinary action. Id. According to S1, failing to complete or falsifying a 4240 is considered unsatisfactory and improper under Agency policies. Id. at 302. S1 noted that despite Complainant’s report that she had forgotten to sign out for the day, Complainant had prior issues with timekeeping. Id. S1 stated that, like Complainant, other carriers were subjected to discipline for not signing out at the end of their workday. Regarding claim (3), S1 affirmed that Complainant was initially charged AWOL because she did not report to work on January 11, 2015, a scheduled workday. ROI, at 305-306. The Team Lead present on the day in question stated that she excused Complainant from work, but did not discuss it with S1. Id. at 237. Complainant stated that S1 notified her that the AWOL form was later rescinded. Id. at 128. As for the issues related to Complainant’s emergency placement in off-duty status alleged in claim (4), S1 stated that Complainant was removed from the schedule pending an investigation into whether she added mail from CW-1’s route to inflate her mail volume or national mail count. ROI, at 308. The Acting Manager of Customer Service at the time affirmed that he made the decision to place Complainant in an off-duty status after S3 presented photographs of mail collected by Complainant that she had discovered. Id. at 254-55. 0120170094 6 With respect to the Notice of Removal in claim (5), S1 affirmed that management held a meeting with Labor Relations regarding the February 2015 rural mail count incident. ROI, at 181. S1 stated that Labor Relations concurred that Complainant’s actions warranted removal. Id. On March 30, 2015, S1 issued Complainant a Notice of Removal, effective April 10, 2015, for Improper Conduct for falsification of postal counts or records. Id. at 286. The Notice of Removal was later rescinded following a grievance settlement agreement. Id. at 288. Finally, concerning claim (6), S1 affirmed that Complainant was removed from the route when management learned that Complainant was not the substitute of record for the route. ROI, at 183. She stated that S2 initially placed a carrier on the route, but management later determined the correct substitute of record for the route. Id. S2 attested that Complainant was assigned to “hold down” the route, but that Complainant’s Union Steward informed S2 that Complainant was not entitled to a hold down because the route was not on Complainant’s matrix. Id. at 191-92. S2 stated that only city carriers could hold down routes and that the substitute carrier who was the assigned relief carrier gets assigned to hold down the route. Id. S2 affirmed that the original replacement for Complainant on Route #12 was the improper replacement and management remedied the issue by replacing her with the proper relief carrier. Id. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). As Complainant withdrew her request for a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. Complainant has not provided any evidence that would establish by a preponderance of the evidence that the Agency’s explanation for Complainant’s termination was untrue. As a result, the Commission finds that Complainant has not established that he was subjected to reprisal as alleged. Hostile Work Environment To establish a claim of harassment, a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her 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 Henson v. City of Dundee, 682 F.2d 987 (11th Cir. 1982). 0120170094 7 Regarding Complainant’s harassment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of harassment must fail. A finding of harassment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 no discrimination. 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. 0120170094 8 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 October 19, 2018 Date Copy with citationCopy as parenthetical citation