Minna Z.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 18, 20180120172387 (E.E.O.C. Dec. 18, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minna Z.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0120172387 Hearing No. 550-2013-00238x Agency No. 1F-951-0019-12 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 8, 2017, final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Mail Handler, Level 4, at the Agency’s San Jose Processing and Distribution Center in San Jose, California. On May 29, 2012, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her based on race (Black), disability, and in reprisal for prior protected EEO activity when: 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. 0120172387 2 3. on February 20, 2012, Complainant was issued a 7-Day Suspension;2 4. starting on April 10, 2012, Complainant was followed constantly, assigned more and harder work, was not allowed to work with friends, not allowed to talk, rushed, given no boundaries, disrespected, and accused of “messing up” dispatch, and holding up production; 5. on May 9, 2012, Complainant was denied light duty; 6. starting on May 15, 2012, Complainant was watched and stared at, and then the supervisor made a gesture by putting her hands on Complainant’s head; and the Agency discriminated against and harassed Complainant based on race (Black) and disability when: 7. on May 26, 2012, Complainant was issued discipline for Failure to Follow Instructions/Conduct Unbecoming; 8. on unspecified dates, the overtime list was not being used, and employees were not rotated when overtime was assigned; 9. from July 1 through July 31, 2012, Complainant was followed and harassed every night she came to work; 10. on August 4, 2011, Complainant’s supervisor “made a big deal” because she could not see that the machine was jammed; and the Agency discriminated against and harassed Complainant based on race (Black) and disability when: 11. on an unspecified date, Complainant was forced to exceed her restrictions resulting in injury while working on the AFSM; 12. on an unspecified date, Complainant was denied overtime while on light duty; 13. on unspecified dates, management shared Complainant’s medical information with her coworkers; 2 We note that the Agency dismissed claims 1 and 2, finding that alleged incidents were identical to Complainant’s prior complaint, Case No. 1F-951-0021-11, and failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). On appeal, Complainant does not dispute these dismissed claims. Therefore, we do not discuss these claims in the decision below. 0120172387 3 14. on an unspecified date, Complainant was forced to move mail from one location to another, and she was denied a password to scan mail; 15. on July 30, 2012, Complainant was issued a Letter of Warning for attendance; 16. since November 9, 2012, Complainant has been required to perform work that exceeded her medical restrictions; 17. on November 26, 2012, Complainant was placed in an emergency, off-duty status, and the police were called to escort Complainant from the building; and the Agency discriminated against and harassed Complainant based on her national origin (not specified), disability (bipolar and unspecified physical condition), and in reprisal for prior EEO activity when: 18. on November 29, 2012, Complainant was issued a 14-day suspension for Failure to Follow Instructions/Unacceptable Conduct; 19. on December 4, 2012, Complainant was reprimanded for drinking coffee at her work station; 20. on December 4, 2012 and other unspecified dates, Complainant was not permitted to talk to other employees and was moved to different machines; 21. on December 4, 2012, management stood behind Complainant and watched her work; 22. on December 10, 2012, Complainant asked for a union steward five times before one was provided; and 23. on an unspecified date, Complainant’s supervisor stated, “make sure all black people work hard.” After an 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 12, 2013 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on May 31, 2017. On June 8, 2017, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. 0120172387 4 The instant appeal followed. On appeal, Complainant requests that the Agency final action be overruled and a finding be made in Complainant’s favor or that the Commission order an evidentiary hearing. Complainant further argues that a hearing is required to determine whether the Agency’s reasons for its actions “are in fact a pretext to cover [the Agency’s] misdeeds.” In response, the Agency argues that we should deny Complainant’s appeal brief because it was untimely submitted, and that we denied Complainant’s request for an extension. Alternatively, the Agency argues that we should affirm the AJ’s decision. ANALYSIS AND FINDINGS Timely Submitted Appeal Brief The record before us indicates that Complainant requested an extension of time to file a statement or brief in support of her appeal on August 3, 2017, and the Commission granted the request on August 4, 2017, with a new filing deadline of September 11, 2017. Complainant, through her attorney, submitted her brief within deadline on August 25, 2017. Therefore, we accept Complainant’s appeal brief. Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. 0120172387 5 While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment. During the investigation into her complaint, Complainant stated that she was diagnosed with bipolar disorder in 1985, with the major symptom being depression. She takes medication for this condition. In addition, Complainant asserted she has a back and neck condition, as well as carpal tunnel syndrome in both wrists, which has required surgery and ongoing medical care. Based on this evidence, we presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 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 a complainant to prevail, he or 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). Once the agency has met its burden, the complainant 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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). Here, we agree with the AJ’s finding that the Agency articulated legitimate non-discriminatory reasons in response to these claims. Disciplinary Claims – Claims 3, 7, 15, 17, 18, and 22 0120172387 6 Regarding claim 3, Complainant’s immediate supervisor (“S1”) (Asian Indian) testified that Complainant was involved in a verbal altercation with another mail handler which S1 was a witness. S1 stated that Complainant’s prior discipline when issuing the 7-day suspension. S1 explained that she “treat[s] all employees equally,” and the other employee involved in the alteration was also issued a 7-day suspension. The record includes copies of a 7-day suspension issued to Complainant and another co-worker regarding a January 4, 2012 verbal altercation between the two employees. Regarding claim 7, S1 testified that when instructing Complainant to move a mail container to the dock, Complainant responded “I am not the runner.” S1 explained that she relied on the Employee and Labor Relations Manual (“ELM”) sections 666.1, 666.2, and 666.51 when he issued the letter of warning, and she also disciplined another co-worker for failing to follow this same instruction. The record includes a copy of the May 26, 2012 Letter of Warning issued to Complainant for failure to follow S1’s instruction and cites relevant ELM sections as justification for this disciplinary action. The record also includes a copy of a May 20, 2012 Letter of Warning issued to another co-worker for failure to follow S1’s instruction to move a mail container. Regarding claim 15, S1 explained that she issued the Letter of Warning because Complainant had irregular attendance. S1 stated that Complainant was late every other day and stopped reporting to work every Sunday despite S1 providing Complainant a quarter of one year to improve her attendance before she issued the Letter of Warning. The June 30, 2012 Letter of Warning indicates that Complainant had 20 absences during the period of March 12, 2012 through July 9, 2012, and Complainant was tardy 8 times during the period of February 17, 2012 through June 28, 2012. Regarding claim 17, S1 testified that Complainant began yelling on the floor after she refused complete an assignment because she was a senior employee and incorrectly thought the work was outside of her limitations. S1 stated that she sought help from the Manger of Distribution (“MDO”) (Hispanic, Mexican-American) who instructed her to call the postal inspectors. S1 explained that she called the police after the postal inspectors did not answer her phone call, and Complainant was escorted out of the building because of her disruptive behavior. S1 further explained that Complainant was not placed in emergency off-duty status and she was allowed to work her next shift that evening. The MDO testified that he had S1 call the postal inspectors because Complainant was “yelling profanities at the top of her lungs.” The MDO explained that he relied on the zero-tolerance policy, the policy on workplace violence, the policy on dignity and respect, among other policies, when he instructed S1 to call the postal inspectors. 0120172387 7 Regarding claim 18, S1 testified that she issued a 14-day suspension to Complainant and another co-worker involved in verbal alteration that continued after S1 instructed both individuals to stop arguing. S1 explained that the Supervisor of Distribution Operations (“S2”) (Asian, Filipino) concurred with S1’s issuance of the 14-day suspension. The record includes a copy of the November 28, 2012 14-day suspension letter indicating that Complainant, on November 6, 2012, had a loud dispute with a co-worker and failed to report to the Tour Office as instructed by S1. The record also contains a December 13, 2012 14-day suspension letter issued by S1 to another employee for her involvement in the November 6, 2012 dispute with Complainant. Regarding claim 22, S1 explained that Complainant is always provided a union steward upon request. S1 stated that Complainant often requests a specific steward who is not always available. S1 also stated that most stewards depart from work at 2:00 pm, and Complainant would have to wait the following day to speak with a steward if she did not request one earlier in the day. Denial of Light Duty and Overtime Claims – Claims 5, 8, 11, 12, and 16 Regarding claim 5, the Plant Manager (“M1”) (Hispanic) explained Complainant’s verbal request for light duty on May 9, 2012 was never completely processed. M1 stated that she did not deny Complainant’s request, but informed Complainant how to formally complete her light duty request as specified by the EML. However, M1 testified that the next day Complainant submitted “new documentation with no restriction or very limited [restrictions] that allow[ed] her to complete her bid assignment.” Regarding claim 8, S1 testified that the overtime list is followed by operational need and time, but there are instances where management calls everyone for overtime until an operation is completed. S1 also explained that sometimes employees choose not to work overtime when they are on the overtime list and those employees are skipped. S1 stated that she uses the overtime list for scheduled overtime. However, if there was unscheduled overtime requiring an hour or less of work, S1 would ask the employees working the operation to work overtime for that duration to finish the operation. The MDO testified that the Overtime list is being used, that it is used according to rotation, and that everyone is treated the same. The MDO explained that overtime for light duty employees was determined on a “case by case basis, depending on the [person’s] restrictions.” Regarding claim 11, S1 testified that she only assigned light duty work during the periods that Complainant had work restrictions. S1 further explained S1 that if Complainant performs work which exceeds her limitations, it is because Complainant chooses to do so. S1 stated that Complainant never informed her that she had a work-related injury. 0120172387 8 Regarding claim 12, S1 testified that she provided Complainant overtime when the work was within her limitations. S1 explained that she did not assign Complainant overtime when the work available was not light duty work during the period Complainant was under a work restriction. Regarding claim 16, S1 testified that she does not require Complainant to work above her limitations because Complainant is only assigned work within her limitations. S1 explained that Complainant has been on light duty since November 2012 and S1 limited Complainant’s assignments to paperwork and no lifting over 20 pounds. The record includes a copy of Complainant’s November 28, 2012 Light Duty Request indicating Complainant’s work restrictions. Specific Employment Actions – Claims 13 and 14 Regarding claim 13, S1 stated that she never shared Complainant’s medical information. Regarding claim 14, S1 testified that moving the mail cages is part of Complainant’s job and the assignment would have only been inappropriate if the assignment was outside of Complainant’s work restriction. S1 further testified that she has requested “many times” for all employees to have passwords to scan the mail because only 2 or 3 mail handlers have passwords that work. S1 stated that Complainant is not the only mail handler without a password, her requests for passwords for all mail handlers have not been granted, and she does not have the authority to assign passwords to her staff. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on her race, disability, and reprisal for prior EEO activity. Harassment – Claims 4, 6, 9, 10, 19, 20, 21, and 23 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment.” The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. 0120172387 9 To establish a claim of harassment, Complainant must show that: (1) she is a member of the 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. Humphrey v. U.S. Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment.” Harris, 510 U.S. at 21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a “general civility code.” Id. In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. Regarding claims 4, 6, 9, and 21, S1 denied that he followed, stared, or watched Complainant. S1 testified that she “follow[s] the mail” to ensure that it is properly sorted and she conducts “quality checks [to] observe how much mail is left to process.” S1 stated that she “caught [Complainant] placing wrong placards on the dispatch.” Regarding claim 10, S1 explained that he notified Complainant that the machine was jammed, indicated that Complainant needed to pay attention to this issue, and stated Complainant’s job responsibility includes clearing machine jams. S1 further denied ever screaming at Complainant. Regarding claim 19, S1 explained that drinks with lids are permitted in the work area and S1 denied ever reprimanding Complainant for this issue. S1 stated that she would have only addressed this issue with Complainant if the container she used did not have a lid. Regarding claim 20, S1 explained that all employees, Complainant included, are moved based on the needs of the operation. S1 further denied ever telling Complainant that she could not speak to other employees. Regarding claim 23, MDO testified that he never made this statement. We find that considering these allegations, even if true, Complainant has not presented sufficient credible evidence demonstrating that she was subjected to unwelcome conduct based on her protected bases. While Complainant may have perceived S1’s actions as unwelcome and harassing, nothing in the record indicates that S1’s actions were anything other than her performing her supervisory duties. 0120172387 10 We also find that Complainant failed to demonstrate any racial, disability, or retaliatory animus on the part of her supervisor. We note that with respect to claim 23, there is no evidence in the record, other than Complainant’s testimony, to support that this incident occurred as alleged. Finally, we find that the incidents Complainant alleges were not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 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. 0120172387 11 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 December 18, 2018 Date Copy with citationCopy as parenthetical citation