Rachael F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 24, 20160120150802 (E.E.O.C. Aug. 24, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachael F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120150802 Agency No. 1C-441-0014-14 DECISION The Commission accepts Complainant’s appeal from the November 21, 2014 final Agency decision (FAD) 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodial at the Agency’s Processing and Distribution Center in Cleveland, Ohio. In November 2013, Complainant claimed that she declined several advances made by her supervisor (S1) including an invitation to have breakfast with him, an invitation to meet him at a casino, and his request for a hug. Complainant claimed that she told S1 to leave her alone and that she had no interest in him. Complainant stated that she only told the Union and her co-workers about the incidents. In February 2014, after Complainant contacted an EEO counselor, management learned of her allegations, and the Acting Maintenance Operations Manager (AM) conducted an investigation into her claims. After reviewing witness statements, AM concluded that there was no evidence supporting Complainant’s accusations. Nonetheless, S1 was separated from Complainant and instructed to avoid any non-work related interactions with Complainant. 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. 0120150802 2 On January 15, 2014, Complainant’s assignment included cleaning the bathrooms on the Administrative side of the building. Complainant refused claiming that she did not have access to that part of the building. S1 instructed Complainant to contact a supervisor to gain access. An hour before the end of her tour, S1 asked Complainant if she had completed her bathroom assignment. Complainant claimed that S1 was harassing her. S1 returned a half hour later and again asked Complainant if she had completed her assignment. Complainant again claimed that she did not have access. On January 18, 2014, S1 held a pre-disciplinary interview with Complainant and the Union Steward. Complainant again insisted that she did not have access to the Administrative part of the building and was unable to complete the assignment. S1 determined that Complainant’s explanation was not acceptable and issued her a Letter of Warning on February 2, 2014. On April 17, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (light-skinned) when: 1. From November 2, 2013 and ongoing, her supervisor (S1) has sexually harassed her; and 2. On or around February 2, 2014, she received a Letter of Warning (LOW). 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). When Complainant did not respond within the timeframe provided in 29 C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency first determined that there was insufficient evidence to establish that S1 made any unwelcome sexual advances or requested sexual favors to Complainant. The Agency noted that AM conducted an investigation into Complainant’s allegations and determined that there was no evidence of any inappropriate comments or conduct. Nonetheless, Agency management instructed S1 to avoid non-work related conversations or interactions with Complainant. Consequently, the Agency found that Complainant had not established that she was subjected to sexual harassment. Finally, the Agency determined that management articulated legitimate, nondiscriminatory reasons for issuing the LOW. Specifically, S1 stated that he issued the LOW because she failed to follow his instructions and did not perform her job properly. The LOW specified that S1 based the action on Complainant’s refusal to follow his order to clean the Administrative bathrooms on January 15, 2014. Complainant failed to provide an adequate explanation for her refusal during the investigative interview on January 18, 2014. As a result, S1 issued Complainant the LOW for failing to carry out her duties and obey the instruction of her supervisor. 0120150802 3 The Agency concluded that Complainant failed to show that management’s reasons for its actions were pretextual. As a result, the Agency found that Complainant had not been subjected to discrimination as alleged. Complainant filed the instant appeal without submitting any arguments or contentions in support. ANALYSIS AND FINDINGS Sexual Harassment To establish a claim of sexual harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct related to her gender, including sexual advances, requests for favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (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; in other words, did the agency know or have reason to know of the sexual harassment and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the complainant's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). As Complainant chose not to request 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. Here, the Commission agrees with the Agency that Complainant has not established, by a preponderance of the evidence, that she was subjected to sexual harassment or a discriminatory hostile work environment. The Commission finds Complainant failed to show that the alleged incidents and conduct actually occurred. The Commission notes that Complainant presented no corroborating evidence demonstrating that S1 subjected her to any inappropriate conduct. Furthermore, even assuming that Complainant established that the incidents occurred as alleged, there is no evidence that Complainant reported the conduct to any management official prior to her January 2014 EEO counselor contact. Once Agency management learned of the allegations, it conducted an investigation. ROI, Ex. 3. The investigation concluded that there was no evidence that S1 sexually harassed Complainant. ROI, at 98, 115. Notwithstanding the results of the investigation, the Agency instructed S1 not to interact with Complainant except for work-related issues. Id. at 125. There is no evidence that any similar conduct recurred. As such, the Commission finds that Complainant’s claim that she was subjected to sexual harassment and a discriminatory hostile work environment fails. 0120150802 4 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Upon review of the record and assuming Complainant established a prima facie case of discrimination on the alleged bases, the Commission finds that the Agency articulated legitimate and nondiscriminatory reasons for its actions. More specifically, S1 emphasized that he issued the LOW for unsatisfactory performance, failure to perform her total job responsibilities, and failure to follow instructions. ROI, at 94. On January 15, 2014, S1 instructed Complainant to clean the bathrooms on the Administrative side of the building and Complainant refused to follow his instructions. ROI, Ex. 2. Complainant failed to provide an acceptable explanation for her actions during the investigative interview. Id. As a result, S1 issued Complainant the LOW for failing to follow his instructions. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency’s actions. Complainant's subjective belief that the management actions at issue were the result of discrimination is insufficient to prove pretext. 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 discriminatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 0120150802 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests 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 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. 0120150802 6 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 August 24, 2016 Date Copy with citationCopy as parenthetical citation