0120113621
08-15-2013
Patricia A. Reynolds, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Patricia A. Reynolds,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120113621
Agency No. 4H350002410
DECISION
On July 15, 2011, Complainant filed an appeal from the Agency's June 28, 2011, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier at the Agency's facility in Atmore, Alabama.
On February 16, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (60) and reprisal for prior protected EEO activity when:
1. on or about December 11, 2009, management announced that another employee would be trained as an Acting 204B Supervisor;
2. on August 16, 2010, Complainant was issued a Letter of Warning (LOW);
3. on September 11, 2010, Complainant was issued a Notice of Suspension - No Time Off For 14 Days or Less; and
4. since September 15, 2010 and continuing, Complainant was harassed pertaining to her usage of sick leave.
An investigation of these claims was conducted. Concerning claim 1, management witnesses asserted that despite Complainant's allegation, there was never any announcement or designated training for an Acting 204B Supervisor. Specifically, Complainant's supervisor testified that during the relevant time period, no one had been trained as an Acting Supervisor because the postal facility where Complainant worked had been short on letter carrier staff for the past three years. Therefore, due to the shortage of carriers, there was no one available to perform the task of Acting Supervisor. The Agency also indicates that Complainant's supervisor offered to let Complainant go to another office to train as an Acting Supervisor if the Atmore Post Office received additional carrier assistance. Complainant's supervisor further indicated that Complainant and another employee also interested in advancement were advised to input information into the Agency's skills bank for consideration. According to the supervisor, Complainant failed to enter her information as advised.
Concerning claim 2, the responsible management officials stated that Complainant was issued a LOW for failure to follow instructions/unsafe act, because she was observed operating her postal vehicle without a seatbelt. Agency policy mandates the use of a seatbelt anytime a postal vehicle is in motion. While the Agency correctly points out that the LOW was rescinded and expunged from Complainant's record, through an Agency grievance, the record indicates that Complainant believed that the LOW was discriminatorily issued initially. According Agency witnesses, other employees, and specifically another letter carrier significantly younger than Complainant were similarly issued a letter of warning for failure to follow instructions/unsafe act. In that regard, the Agency found that Complainant has failed to demonstrate that she was treated less favorably than similarly situated employees under similar circumstances.
In claim 3, the record reveals that Complainant was issued a Notice of Suspension when Complainant skidded into an intersection and hit a car with her postal vehicle, resulting in significant property damage. The Agency indicated that neither Complainant's age nor her prior protected activity factored into the decision to issue the suspension. Again, the Agency found that Complainant was unable to demonstrate that she was treated less favorably than similarly situated employees outside her protected classes under similar circumstances.
With regard to Complainant's harassment claim, she alleges that when she called in sick, on September 15, 2010, following a flare-up of her diabetes, her supervisor asked her to have a nurse call to verify her illness. Complainant also alleges that her supervisor advised her that she could not take any more sick leave until after a management meeting was held to determine how many days of sick leave she could use. The supervisor, however, denied Complainant's allegations. Rather, the supervisor said that Complainant was advised that in order to receive approval for leave pursuant to the Family Medical Leave Act, (FMLA), she had to submit certain required documentation. However, for several months Complainant failed to provide the appropriate documentation. Consequently, on September 20, 2010, Complainant, her supervisor and an FMLA coordinator met via telephone conference to discuss the documentation Complainant needed to provide in order for FMLA approval. The record indicates that ultimately, Complainant's FMLA was approved on October 6, 2010.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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. (November 9, 1999) (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").
Here, we agree with the Agency's finding of no discrimination. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973); Hochstadt v. Worcester Foundation 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. The Agency then has the burden of articulating legitimate, non-discriminatory reasons for the actions in dispute. 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).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination, we find further that the responsible management officials articulated legitimate, nondiscriminatory reasons for the matters in dispute, and Complainant failed to prove, by a preponderance of the evidence, that those proffered reasons were pretext for discrimination.
Moreover, to the extent that Complainant alleges that discussion of her leave constituted discriminatory harassment, the Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "Conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993).
To establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6.
After a review of the record, the Commission finds that Complainant's claims do not constitute discriminatory harassment. The Commission concludes that Complainant did not prove that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, there is no evidence that the Agency was motivated by discriminatory animus. Accordingly, Complainant has not established that she was subjected to a discriminatory hostile work environment.
Based on a thorough review of the record, we AFFIRM the final agency decision finding no discrimination.
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 finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 15, 2013
__________________
Date
2
0120113621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
2
0120113621