Ranae L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 20, 20180120173019 (E.E.O.C. Dec. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ranae L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120173019 Agency No. 1G333000816 DECISION On September 6, 2017, 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 March 7, 2017, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a mail handler at the Agency’s Miami International Service Center facility in Miami, Florida. On September 20, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discrimination on the bases of race (African-American), national origin (American), sex (female), color (Black), and age when: (1) since June 2013, she was harassed and threatened by co-workers and, after reporting these incidents, management failed to properly address the matter; and (2) Complainant was issued a notice of removal, dated September 21, 2015, with an effective date of October 21, 2015. 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. 0120173019 2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent evidence. Complainant submitted numerous incident reports to management regarding alleged harassment and/or threatening events by supervisors and co-workers, including yelling at her, tampering with and/or damage to her vehicle, inappropriate hand gestures, taunting her, parking near her vehicle, not being assigned certain tow mowers, driving too close to her, being accused of a near miss accident, the union improperly representing her, leaving notes on her tow mower, cursing at her, and using other offensive language. Management indicated they investigated Complainant’s allegations, but there were no corroborating witnesses. A police report dated June 5, 2014, indicates there was a verbal dispute between Complainant and a co-worker and that management was aware of the situation. A physician’s note dated in December 2014 indicates Complainant was under severe stress at work from May 27 to June 23, 2014. A January 2015 worker’s compensation form indicates Complainant had chest pains and mental health symptoms. A January 2015 statement from a psychiatrist indicates Complainant was under treatment for depression and that her condition began on December 15, 2014; a social worker’s note dated April 1, 2015, indicates Complainant was not ready to return to work and needed to be re-evaluated in 30 days. Another note from the social worker, dated April 28, 2015, indicates Complainant should not return to work on May 1, 2015, as she feels betrayed by management and the union and to return her to the same environment with the same people would be a mistake. Complainant alleges that her attendance was outstanding prior to the bullying and harassment. The record contains Complainant’s time and attendance records and pictures of perfect attendance shirts (awards). Time and attendance records show Complainant did not work after December 15, 2014, with a combination of sick and annual leave applied through April 16, 2015. Management sent a letter, dated March 27, 2015, to Complainant indicating her unsubstantiated absence since December 15, 2014, had become a concern and requesting medical documentation to substantiate her absence. A letter, dated April 10, 2015, indicates Complainant was scheduled for an investigative interview on April 20, 2015. A letter, dated May 14, 2015, indicates Complainant failed to report for her investigative interview and due to her failure to report or provide substantiating documentation, the entire period was converted to AWOL. Additional letters dated in June and July 2015 indicate Complainant’s unsubstantiated absence was a concern and requested medical evidence to substantiate her absence. A Notice of Removal, dated September 21, 2015, indicates Complainant was to be removed, effective October 21, 2015, for two reasons. First, she was charged with unsatisfactory attendance and AWOL. 0120173019 3 She had been on AWOL since December 16, 2015 and for 1544.00 hours. Second, she was charged with unsatisfactory performance due to failure to follow instructions. Complainant failed to comply with the March, June, and July 2015 letters instructing her to provide acceptable documentation to substantiate her continued absences and with the May 14, 2015 notice that she was to report for an investigative interview. 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). In accordance with Complainant’s request, 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. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant asserts that Complainant’s work record was “clean,” including her attendance record, prior to being transferred to the Miami ISC facility, where she was subject to pervasive and severe harassment, which adversely impacted her performance. Management failed to properly investigate every instance of harassment and failed to properly notify Complainant of her removal. The Agency has not submitted a brief or statement in response. 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. (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”). Complainant alleged that the Agency subjected her to harassment. 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 the complainant's employment and create a hostile or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23 U.S. 75 (1998). 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. 0120173019 4 Thus, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. We find that Complainant’s harassment allegations can generally be described as either being spoken to rudely, harshly, or in bullying or threatening ways amounting to personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and employee and/or co-workers. Even if Complainant’s allegations that her supervisors and co- workers spoke to her in such ways were true, we find they are insufficiently severe or pervasive as to have altered the conditions of her employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (October 16, 1998); and Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The allegations regarding the statements, assuming they are true, were isolated incidents that are insufficient to support a prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). We have also found that such personality conflicts and general workplace disputes, as alleged by Complainant, do not amount to unlawful harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). Moreover, there is no evidence, beyond her bare assertions, that Complainant’s race, color, national origin, sex or age played any role in incidents at issue. Thus, her allegations, even if true, are insufficient to support this claim. Complainant has also alleged that she was treated disparately with respect to how management addressed her complaints of harassment and when she was issued a notice of removal. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, her claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. With respect to her allegation that management failed to address her allegations of harassment, management explained that Complainant’s allegations were investigated but there were no corroborating witnesses. 0120173019 5 With respect to her allegations regarding her notice of removal, we find the record substantiates management’s position that Complainant was absent without leave and failed to sufficiently substantiate her absence from December 15, 2014 through the date of the notice, September 21, 2015. While the record establishes Complainant was experiencing mental health problems in December 2014 and January 2015 and there is documentation of record that she continued to be in treatment, it does not establish that Complainant sought approval for her extensive period of leave or that she was so incapacitated as to preclude her ability to do so. The record also does not establish Complainant provided such evidence in response to the Agency’s request for documentation to substantiate her absence. Therefore, we find that Complainant has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 0120173019 6 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 20, 2018 Date Copy with citationCopy as parenthetical citation