0120160725
06-29-2018
Peggie T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Peggie T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160725
Hearing No. 430-2015-00379X
Agency No. 4K-230-0096-14
DECISION
On December 4, 2015, 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 November 12, 2015, 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 (FAD) which found that Complainant did not demonstrate that she was subjected to discriminatory harassment.
ISSUE PRESENTED
The issue presented is whether the FAD erred in finding that Complainant did not establish discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant 1, at the Agency's Chesapeake South Norfolk Station in Chesapeake, Virginia. Complainant maintained that her hours were severely reduced; and she was placed "on-call," which meant she was forced to work various schedules at various locations. She maintained that she was subjected to a hostile work environment with management doing everything possible to terminate her from her position. On May 16, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to discriminatory harassment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From September 12 thru 19, 2013 and March 19, 2014 thru April 3, 2014, she was placed "on-call" and her work hours were reduced;
2. On unspecified dates in December 2013 and January 2014 she was placed "on- call" and her work hours were reduced;
3. In or around February 2014, she was instructed that she could not wear her brown jacket for layering against the cold weather even though she had still not been provided her uniform allowance;
4. On February 15, 2014, her manager (M1), stated during a Pre-Disciplinary Interview (PDI) that he "was going to get you";
5. On February 19, 2014, the Acting Postmaster (M2) was on the phone and told her "I'm going to do my best to get rid of you" and said she would have her resignation papers ready for her when she returned to the office;
6. On March 1, 2014, she was subjected to a PDI regarding her brown jacket;
7. On October 23, 2013, she was issued inappropriate discipline;
8. On February 5, 2014, she was issued a Letter of Warning;
9. On February 15, 2014, she was issued a 7-Day Suspension;
10. On February 24, 2014, she was issued a 7-Day Suspension;
11. On February 24, 2014, she was denied a "hold down" on a route and her work hours were reduced;
12. On or around May 3, 2014, she was not converted to a full time regular carrier; and
13. On or around April 11, 2014, she was mailed a Notice of Removal.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the AJ subsequently dismissed the hearing request on the grounds that Complainant did not respond to the AJ's requests in a timely manner. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
The FAD concluded that Complainant failed to prove that the Agency subjected her to reprisal discrimination as her managers were not aware of her prior EEO activity. She also did not show that she was subjected to harassment as the incidents alleged were not severe or pervasive enough to establish a hostile work environment. Specifically, the Agency found that even though management was unaware of any prior EEO activity, it articulated legitimate, nondiscriminatory reasons for its actions, namely, that with regard to claims nos. 1 and 2, Complainant's work hours were reduced because of her poor work performance. Management indicated that Complainant's poor work performance was repeatedly addressed but there was no improvement so placing her on-call was their way of maintaining the unit at a high degree of efficiency. Management noted that Complainant filed a grievance regarding the violation of the on-call policy. A decision at Step B, was made to pay Complainant for the time that she was not scheduled to work.
With regard to claim no. 3, Complainant was told that she could not wear her brown jacket for layering, even though she had not gotten a clothing allowance. Management maintained that she was not allowed to wear the brown jacket because the Agency's colors were blue and grey. She was instructed to look in the bin in the break room to find something until the matter of her clothing allowance could be decided. It was noted that Complainant wore her uniform to the meeting regarding this matter, so management believed she did have a uniform.
Regarding, claim no. 4, M2 denied that he told Complainant that he was going to get her. Also, with regard to claim no. 5, M1 indicated that she did not tell Complainant that she was going to do her best to get rid of her. Instead M1 stated that she told Complainant that she was not making any improvement in her performance and the budget could not tolerate her poor performance. M2 averred that Complainant called the office daily stating that she was unable to complete her tasks in the time allotted without any justification.
Further with regard to claim no. 6, Complainant had previously been instructed not to wear her brown jacket but she continued to so and therefore she was subjected to a PDI. Regarding claim 7, management denied issuing Complainant inappropriate discipline. Management explained that Complainant was issued an Employee Evaluation on October 23, 2013, as a tool to try and improve her work habits and help her follow instructions. Management averred that Complainant had a performance problem and was spoken to on several occasions about carrying out assignments within a designated time frame. Complainant was issued a Letter of Warning, claim no. 8, on February 5, 2014, for failing to follow instructions as she continued to fail to deliver all of the mail in the time allotted.
With regard to claims 9 and 10, management explained that Complainant was subjected to a 7-Day Suspension on February 15 and 24, 2014, because she failed to improve her work habits and performance. Regarding claim 9, Complainant was given a suspension because she was given verbal instructions by her manager to eat her lunch after she delivered the mail to a certain location and to then deliver the mail on her regular route but she did not follow this instruction. Moreover, she was suspended on February 24, 2014 for improper conduct as she failed to deliver a specific type of mail.
With respect to claim no. 11, Complainant was denied a "hold down" on a route and her work hours were reduced because she did not deliver the mail in a timely and efficient manner on the part of the route she was assigned. Similarly, Complainant was not converted to a full-time regular carrier, claim no. 12, because she was issued a notice of removal on April 11, 2014. Finally, Complainant was issued a notice of removal because she did not report an accident in a timely manner. Specifically, Complainant suffered an injury on January 24, 2014, but did not report it to management until February 27, 2014.
The FAD found that Complainant did not establish that the Agency's articulated, nondiscriminatory reasons were a pretext for discrimination or that the incidents alleged were severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that the AJ erred in dismissing and remanding her case for a hearing. She maintains that the "alleged threats, unwarranted discipline, and disparate treatment in this matter are triable issues." Complainant asserts that she missed response dates because she was stressed by the Agency's actions. Further, Complainant contends that she believes that her previous managers were aware of her EEO activity and they probably shared it with the Chesapeake office.
The Agency did not file a statement on appeal.
ANALYSIS AND FINDINGS
Standard of Review
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 based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant did not establish a prima facie case of reprisal as her management team was unaware of her prior EEO activity. While management was aware that Complainant had filed multiple grievances, the record indicates they were not aware that Complainant had filed a claim regarding discriminatory conduct. Notwithstanding, we find the Agency articulated legitimate, nondiscriminatory reasons for its actions as listed above, and Complainant did not show that the reasons were pretext for discrimination.
With respect to Complainant's contentions on appeal, we note that it was well within the AJ's discretion to dismiss the hearing and to remand her complaint to the Agency for a final decision if she failed to follow instructions. Complainant acknowledges missing response dates; therefore, we find that she has not demonstrated that the AJ erred here. We also note that Complainant argues that management was aware of her EEO activity but she has not provided evidence to prove this statement. We find that the record clearly shows that Complainant filed Union Grievances and complained that the Agency violated its policies but this is not the same as alleging discrimination took place. Further, we find that other than her conclusory statements on appeal, she has not provided any evidence which shows that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
Regarding Complainant's hostile work environment claim, we note that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Kozak v. United States Postal Service, EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. United States Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010). Such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive to be so." Id.
Upon review, we find that, in light of the standards set forth in Harris, no persuasive evidence that the incidents - which appear to be routine office/work related interactions, even if accurately described by Complainant, were sufficiently severe or pervasive enough to have unreasonably interfered with her work performance and/or to have created an intimidating, hostile, or offensive work environment.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that she was subjected to discrimination and/or a hostile work environment.
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
_6/29/18_________________
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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