Rhea H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jan 29, 2020

2019002662 (E.E.O.C. Jan. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rhea H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2019002662 Agency No. 1K231004618 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a January 16, 2019 Final Agency Decision (“FAD”) concerning an 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 was employed by the Agency as a Postal Support Employee ("PSE") Mail Processing Clerk, 06/A, at the Agency’s Norfolk Processing and Distribution Center ("P&DC") located in Norfolk, Virginia. On July 16, 2018, Complainant filed an EEO complaint alleging discrimination Agency on the bases of sex (female), disability (PTSD, undisclosed disability covered under the FMLA), and age (57) when: 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. 2019002662 2 1. On January 27, 2018, she was placed on emergency placement in an off-duty without pay status, and 2. On or about April 16, 2018, she was issued a notice of removal (“NOR”) for improper conduct. On August 6, 2018, the Agency dismissed Claim 1 for untimely contact with an EEO counselor, pursuant to 29 C.F.R. 1614.107(a)(2), and accepted Claim 2 for investigation. At the conclusion of its investigation of Claim 2, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or 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). On January 27, 2018, Complainant reported to work at the Manual Priority section of the floor around 4:00 am. By her account, she was in a good mood, looking forward to her upcoming birthday. Complainant walked away from her work station and the Supervisor, Distribution Operations (“SDO,” female, 64) asked Complainant to accompany her to the Manager, Distribution Operations’ (“MDO,” female, 57) office. There, the MDO informed Complainant that she was on emergency placement in an off-duty, without pay status, and Complainant was escorted from the premises. Complainant states she did not know why. According to SDO, two of Complainant’s coworkers (“C1” and “C2”), both PSEs working in the Manual Priority area near Complainant, separately approached her that morning, reporting that Complainant made comments that she “was going to take all of her frustration from childhood up until now out on everybody here,” and “shoot everybody up.” After placing Complainant on emergency leave, SDO obtained written statements from C1 and C2, as well as two other PSEs working near Complainant (“C3” and “C4”), who also heard the comments. MDO contacted the U.S. Postal Inspection Service (“USPIS”) to initiate a Threat Assessment of Complainant. Two USPIS Inspectors attempted to contact Complainant at home, and when they found she was not there, they called her, saying they “needed to speak to her regarding what occurred earlier that morning.” Both inspectors recount that Complainant responded, “I cannot believe this. I was talking to myself.” Complainant was on her way home, and the inspectors waited for her to return. When they spoke with Complainant at her home, Complainant denied making the comments, or making any threats toward anyone. She was happy because her birthday was coming up, and she was telling a coworker about that and some artwork she was interested in. When asked if she made comments about shooting anyone, Complainant stated that she did not own a gun, nor did she have access to any weapons, and that she would never jeopardize her job by making such statements. 2019002662 3 When the inspectors informed Complainant of the four PSE Clerks who provided statements, she expressed surprise that they could all hear her, but reiterated that she did not make any threatening comments. She also alleged that C1 was “out to get her” and the younger PSEs had been harassing her. When one of the USPIS Investigators noted that Complainant had been accused by multiple witnesses of threatening C1’s life in an investigation about two months earlier, Complainant contended that C1 had threatened her life, she had called the police out of fear (an officer arrived, but no charges or report was filed), and ultimately both she and C1 served ten-day suspensions for the altercation. On January 29, 2018, USPIS issued an Assault and Threat Specialty Report (“ATSR”) for Complainant. Out of four priority levels (four as “no risk” and one as “extreme risk”) The ATSR concluded that Complainant posed a “Priority 2” threat. In other words, Complainant was considered “high risk,” having threatened violence to an identifiable target, but “lacking immediacy and/or a specific plan of violence.” The ATSR contained statements from SDO, MDO, and the two investigators. Specifically, the investigators noted Complainant’s initial response, “I cannot believe this. I was talking to myself,” as undermining the credibility of her later statements. The ATSR also contained the signed statements issued by C1, C2, C3, and C4: - C1 stated that she, C1, C2, C3, and one other witness who was not interviewed, all heard Complainant say, “if she says one more thing to me I’m [going to] take all my frustrations from childhood on up to now on everybody” then leave the floor. - C2 stated that she, heard Complainant say, “I’m going to kill her if she says one more thing to me” and they did not know who Complainant was referring to. C2 also said that Complainant commented that “she is going to kill everybody in the plant; she is going to take all of her frustration from childhood up until now out on everybody here.” C2 described Complainant as “a hazard, or ticking time bomb” and stated that “threats like this make me feel unsafe and uncomfortable.” - C3 stated that Complainant talking about painting, then, “suddenly [Complainant] said that if she hears [unspecified] talking about her one more time she said that she is going to kill everybody, and she is going to release all her frustrations from her childhood until now. And [C3] said you scare me, and she just laugh and went outside to smoke.” - C4 stated that she “and other people heard [Complainant] talking and making threats to those around her. She said she would kill everyone. Then she said she would release her frustrations from childhood to now on someone… we did not know who she was talking about. After she made threats, she left the floor to take a break.” 2019002662 4 On February 7, 2018, Complainant attended a pre-disciplinary interview (“PDI”) with a union representative,2 her immediate supervisor, MDO, and one of the USPIS Inspectors present, and they explained that she was in violation of the Agency’s Zero Tolerance Policy. Complainant contends she was not provided an opportunity to give her side of the story. On April 16, 2018, Complainant was issued a NOR for her actions on January 27, 2018. MDO was the deciding official, with the Manager, In-Plant Support (female, 50, no disability), as the concurring official. The NOR cites the ATSR as evidence that Complainant violated the Agency’s “Zero Tolerance Policy,” along with relevant supporting Agency policy provisions for when an employee engages in threatening or violent conduct. The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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, (“EEO MD-110”) 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”). Dissatisfaction with the Investigation Pursuant to 29 C.F.R. § 1614.108(b), an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the complainant’s written complaint. An “appropriate factual record” is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Upon receiving the report of investigation from the Agency, the complainant has an opportunity to cure any defects in the investigative record by either notifying the Agency, in writing, of any perceived deficiencies, or by requesting a hearing before an AJ. EEO MD-110, at Ch. 6, § XI and Ch. 7, §I, Tommie O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). 2 On appeal, Complainant repeatedly alleges that she was denied of union representation during the event in Claim 1 and events related to Claim 2 (violations of her “Weingarten Rights”). Allegations concerning union processes fall outside EEOC jurisdiction. The proper forum to raise a claim regarding a violation of Weingarten Rights is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002). 2019002662 5 Complainant has not asserted that she requested a hearing before an AJ, yet, on appeal, she raises witness and credibility issues, which can only be determined through the hearing process. For instance, Complainant questions the credibility of the Agency officials who deemed her statements “not credible” and allegedly failed to properly consider polygraph evidence she provided. Complainant alludes to the existence of witnesses who could provide supporting testimony, but states (without evidence) that, “no one I know is willing to testify on my behalf for fear [of retaliation] and the real threat of being ostracized, harassed, or worse, to find themselves in the same position as I am.” Ultimately, Complainant appears to ask that we disregard evidence in the ROI, such as witness testimony and the ATSR, in favor of her evidence, including, but not limited to the polygraph report and her personal journal.3 If Complainant wanted to develop the record by challenging testimony and findings of Agency officials through cross examination, and additional witness testimony or evidence of retaliation, she should have requested a hearing before an AJ. See Meghann M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120152380 (Nov. 17, 2017). By choosing not to request a hearing before an AJ, she waived the opportunity to develop the record through discovery and to cross examine witnesses. See Tommy O. v. United States Postal Serv., EEOC Appeal No. 0120152090 (Jun. 8, 2017). Upon review, we find the Agency developed an appropriate factual record, which we have considered, along with Complainant’s evidence. Claim 1 In relevant part, 29 C.F.R. §1614.107(a)(2) states that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. Under 29 C.F.R. §1614.105(a)(2) the time limit may be extended if a complainant establishes that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the agency or Commission. The alleged discriminatory act in Claim 1 occurred on January 27, 2018. Complainant did not contact an EEO Counselor until April 4, 2018, well over 45 days later. On appeal, Complainant offers no explanation to warrant an extension of the 45 day limitation period. We find the Agency properly dismissed Claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2). 3 Complainant also submitted a separate “Appeal Brief,” which was illegible. 2019002662 6 Claim 2 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). Here, the Agency’s legitimate nondiscriminatory reason for issuing the NOR was that it acted consistent with its policies after determining that Complainant engaged in “Improper Conduct,” based on information gathered in an ATSR. Specifically, the Agency determined that Complainant violated the “Zero Tolerance Policy” provided in the Employee and Labor Relations Manual (“ELM”) Section 665.24, which states, in relevant part: “[the Agency] is committed to the principle that all employees have a basic right to a safe and humane working environment. In order to ensure this right, it is the unequivocal policy of the Postal Service that there must be no tolerance of violence or threats of violence by anyone at any level of the Postal Service… Violation of this policy may result in disciplinary action, including removal from the 2019002662 7 Postal Service.” The NOR also cites Publication 45 “Achieving a Violence-Free Workplace Together,” which explains that “[t]he concept of zero tolerance is based on the belief that no employee should have to work in an atmosphere of fear and intimidation. Every threat and every act of inappropriate behavior must' be addressed.” On appeal, Complainant offers a number of comparator employees, including C1, who she alleges violated the “Zero Tolerance Policy” yet were not subject to termination. However, Complainant has not shown that the comparators were “similarly situated” to her, as none of them were found to be “Priority 2” threats by the USPIS, nor did they have witness statements testifying that they threatened violence more than once, or against the entire facility. Likewise, the polygraph report and the document from the Virginia Employment Compensation Office finding “in this instance, the information presented does not establish that [Complainant] was discharged due to misconduct in connection with work Complainant provides on appeal are not sufficient, given the ATSR, and Agency policy, to establish the Agency’s legitimate nondiscriminatory reasons were pretext for discriminatory intent. 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. 2019002662 8 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 January 29, 2020 Date