Obdulia M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20160120142393 (E.E.O.C. Mar. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Obdulia M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120142393 Agency No. 4K-280-0100-13 DECISION Complainant filed an appeal from the Agency’s May 30, 2014 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 Complainant worked as a Carrier Technician at the Minuet Post Office in Charlotte, North Carolina. On November 15, 2013, Complainant filed an EEO complaint in which she alleged that her Customer Services Supervisor (CSS) and her Customer Services Manager (CSM) discriminated against her on the basis of sex (female) by subjecting her to a hostile work environment as described below. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame prescribed by 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), in which it concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 1This 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. 0120142393 2 Complainant initially averred that on August 19, 2013, while CSS was riding in the delivery vehicle with her, he yelled at her in front of customers and snatched mail from her hands. She also averred that CSM had told the CSS to “put pressure” on her. CSS denied that he did either of these things and vigorously denied that CSM had ordered him to pressure her. He averred that he was on the route with Complainant because she had requested four hours of overtime to complete the route on a number of occasions and consequently, management needed to ascertain whether there was a problem with the route itself. CSS also stated that he remained silent while Complainant was making her deliveries, and that Complainant drove off before she finished the route, leaving him stranded. CSM likewise denied directing CSS to put pressure on Complainant. Investigative Report (IR) 99, 120-22, 155, 163. Next, Complainant averred that a second Customer Services Supervisor (CSS2) who was not in Complainant’s chain of command delivered a letter to her home on August 22, 2013, and tried to get her son to sign for it. CSS2 averred that he did deliver a letter to Complainant’s home at the request of CSM, and that he requested a signature for postal proof of delivery. He further stated that he did not recall whether Complainant’s son signed for the letter or not. IR 136-37. Third, Complainant averred the letter CSS2 was sent to deliver was from CSM, and it informed her that she was being required to submit medical documentation for her partial absence from work on August 19th, and that Complainant’s failure to submit the required documentation would result in her being charged with AWOL. CSM averred that Complainant ultimately provided acceptable documentation. IR 99-100, 157-158. Fourth, Complainant averred that CSS had subjected her to an investigative interview on September 20, 2013. The investigative memorandum stated that Complainant was being investigated for unsatisfactory work performance, failure to follow instructions, and improper conduct in connection with the incident between her and CSS that had occurred on August 19th. IR 123-24, 160-64. Fifth, Complainant averred that on September 20, 2013, CSS issued her a notice of proposed removal with the concurrence of CSM. The proposal was based on a charge of improper conduct arising out of the August 19th incident and supported by the investigation at issue in the fourth incident. As a result of a grievance, however, the matter was reduced to a 14-day paper suspension and all records pertaining to it were expunged. IR 102-03, 124-26, 167, 187. Finally, Complainant averred that on October 4, 2012, she received a letter notifying her that she would be subjected to an attendance review and that she would be reassigned to the Independence Station, effective the following day. According to CSS, attendance reviews were mandatory. The notice instructed Complainant to fill out the enclosed Form 3971 and return it within five days of receipt. As to the reassignment, Complainant had been converted from a Part-Time Flexible Carrier to an Unassigned Regular who was entitled to bid on available positions. Due to her limited seniority, she was reassigned to the Independence 0120142393 3 Station, which was regarded as a less desirable location. However, after filing her grievance, she was returned to Minuet. IR 104-06, 111-12, 147-48, 168-69, 172-73. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail in her claim of discriminatory harassment, Complainant would have to prove, by a preponderance of the evidence, not only that the incidents comprising her claim were so severe or pervasive as to constitute a hostile work environment but also that CSS, CSS2, or CSM were motivated by unlawful consideration of her gender in connection with those incidents. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). If Complainant fails to establish the existence of discriminatory intent on the part of these officials, no further inquiry into the severity or pervasiveness of the incidents would be necessary. See Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October 15, 2015). In circumstantial-evidence cases such as this, Complainant can establish the existence of an unlawful motivation by presenting documents or sworn testimony from other witnesses tending to show that the reasons articulated by the CSS and CSM for their actions were a pretext, i.e., not the real reason but rather a cover for sex discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the CSS’s or the CSM’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008). In support of her contention that CSM ordered CSS to put pressure on her while he was observing her delivery route, Complainant proffered a routing slip dated August 26, 2013. An individual whose job title was not given stated, “On Monday, August 19, 2013, at about 10:20 AM, I heard CSM tell CSS to put pressure on Complainant.” IR 156. At best this is an unsworn declaration, the credibility of which is heavily compromised by the complete lack of information clarifying the circumstances in which he observed the conversation between CSM and CSS that allegedly took place. Even if we were to assume that the statement is true, it does not go to the motive of either official for wanting to “put pressure” on Complainant, and is therefore of no probative value. When asked by the investigator why she believed that her gender was the motivating factor behind these incidents, Complainant responded with vague, confusing, and conclusory answers, such as: “CSS rode with other carriers and didn’t do anything to them;” or “CSM has a personal problem with me;” and that CSM “wanted to get back at her.” With regard to the interview incident, Complainant acknowledged that her sex was not a factor, stating that, 0120142393 4 “they give investigative interviews to every for different reasons.” Finally, when asked about the letter delivery (incident 2) and the October 4th notice (incident 6), she gave no response at all. When asked whether she was aware of any other employees with circumstances similar to hers who were treated differently, she replied, “no.” IR 76-78, 81-83, 86, 89. Beyond these assertions, she has not submitted any sworn statements from other witnesses or documents that contradict the explanations provided by CSS, CSS2, or CSM, or which call their veracity into question. We therefore agree with the Agency that Complainant failed to establish the existence of an unlawful motive on the part of any of the named officials with respect to her hostile environment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 0120142393 5 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 March 29, 2016 Date Copy with citationCopy as parenthetical citation